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REPLY 



TO 



PROFESSOR PARKER'S LETTERS, 

IN THE BOSTON POST, 

TO 

REV. LEONARD BACON, D. D. 

BY EEV. LEONAKD BACON, D. D. 



From the " New Englander" for April, 1863. 



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REPLY TO PROFESSOR PARKER, 



BY 



KEV. LEONARD BACON, D. D., 

NEW HAVEN, CONN. 



[From the " New Englander" for .April, 1863.1 



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1863.] Reply to Professor Parker. 191 



Article III.— REPLY TO PROFESSOR PARKER. 

Boston Post, Nov. 29, Dec. 8, 12, 20, 27, 1S62— Jan. 3, and 
Feb. 18, 1863. [Letters to the Rev. Leonard Bacon, D. D., 
New Haven, Conn.] 

To the Hon. Joel Parker, LL. D., 

Royal Professor of Law in Harvard College, Cambridge, Mass. 

Sir, — If the seven letters which you have addressed to me in 
the columns of a Boston newspaper, had been digested into a 
pamphlet addressed directly to the public, I might have criti- 
cized it in the humble capacity of a reviewer without regard- 
ing the debate as in any sense a personal one between you and 
me ; or I might have been silent without seeming to confess 
that yonr strictures on a newspaper article from my pen are 
unanswerable, or to deem them unworthy of notice. But your 
letters, as they lie before me, are in the nature of a challenge 
to a personal debate. Either I must reply to them in my own 
name, or I must be entirely "silent ; and if I am silent after 
such a challenge, that will of course be construed as meaning 
either that I have no respectful opinion of your letters, or that 
I dare not attempt a reply. The conductors of the. New 
Englander have therefore conceded to me the privilege of 
answering your letters by a review in the form of a letter 
to their author. 

When I speak of a personal debate, I do not use that word 
" personal " as implying any departure from the rules of con- 
troversial courtesy. I do not complain of your letters in that 
respect ; nor do I intend that you shall have any reason to 
complain of my answer. Yet I may be allowed to say, at the 
outset, that you are, and I am not, a professional lawyer ; that 
having held a high judicial office, and being now a Pro- 
fessor in the Law School of Harvard College, you have attain- 
ed an enviable eminence in your profession; and that there- 
fore your opinions on the main question which you have chal- 



192 Reply to Professor Parker. [April, 

lenged me to debate with you, may be expected to have with 
at least a large part of the public, an authority which mine 
cannot have. It gives me pleasure to say farther, that unless 
I am misinformed, you have done yourself honor, both as a 
lawyer and as a citizen, by repudiating the gross iniquity and 
chicanery of the Dred Scott decision, and all the policy of 
President Buchanan's administration in regard to slavery; 
that you have been uncompromisingly opposed to the exten- 
sion of slavery and to its existence in any territory of the 
Union ; and that your opposition to President Lincoln's ad- 
ministration began in an unfortunate attempt so lately as last 
autumn to organize a party in Massachusetts, which should 
at once sustain the President and defeat the reelection of Sena- 
tor Sumner. There are disloyal men in the loyal states — men 
whose sympathies are with the rebellion more than with the 
government — men who hold that the moral and political 
opposition to slavery which characterizes the free-labor states 
is opposition to the Constitution and the Union, and that there- 
fore the rebellion is justifiable, and the war on our part a 
crime — men who seem to have hardly any other conception of 
the Constitution than that it was instituted for the purpose of 
guaranteeing and nationalizing the institution of African 
slavery. Having no respect for these men, or for any of them, 
high or low in position, I am happy to be assured that you are 
not one of them. 

Without farther preface, I proceed to the questions which 
you have invited me to discuss with you. 

The first of these questions, you will allow me to say, re- 
quires a more accurate statement than you have given. Your 
statement of the question is such — or rather, your various 
statements are so discordant — that I am at a loss to know 
whether there is really any disagreement between us about it, 
or what the proposition is which one of us maintains and the 
other denies. You begin with the announcement that you 
have undertaken to perform " a duty which some one owes to 
the profession of the law and to the community generally ;" 
and you describe the duty in these words: — 



1863.] Reply to Professor Parker. 193 

" It is the duty of vindicating the right of the gentlemen of the Bar to form 
their opinions upon legal subjects, and especially upon the construction of the 
Constitution of the United States, and to express those opinions in any manner 
consistent with due courtesy to others, -without being subjected to censure, sneers, 
abuse, and vituperation, by a class of clergymen who assume to know more of 
constitutional law than the tribunals and officers created and constituted for the 
purpose of discussing and determining legal questions." 

Is this your statement of the point on which you expect me 
to join issue with you ? If so, there is no dispute between us. 
The right which you have undertaken to assert for " the gen 
tlemen of the Bar " is cheerfully conceded ; and if the right 
needs to be vindicated, I am as ready as you are to vindicate 
it against all comers. As for the " class of clergymen who 
assume to know more of constitutional law than the tribunals 
and officers created and constituted for the purpose of discuss- 
ing and determining legal questions," I am not of them, nor 
will I undertake to defend them. 

After expatiating a little on this statement, you put the ques- 
tion in a somewhat different way : — " If the clergy really have 
the best set of rules by which to determine our constitutional 
rights and duties." Allow me to say that on this question I 
have no dispute with you. I have never pretended that cler- 
gymen, whose professional business is to expound the docu- 
ments of our religion, have any better rules, or any other rules, 
for the interpretation of documents, than the rules which are 
prescribed to your profession for the interpretation of written 
laws and constitutions. "What other clergymen may have 
said or implied, is no concern of mine, inasmuch as I have 
never made myself responsible for them. Should you be able 
to discover a clergyman who says that the " clergy" have other 
and better rules of interpretation than those which are recog- 
nized in your profession, I shall accept the fact as proof of 
what needs no proof, namely, that every profession has its 
blunderers. 

Looking a little further, I find still another statement of the 
question. After admitting "that among the lawyers them- 
selves there is a difference of opinion upon various questions of 
constitutional law," you say, — 

" But that is not at all material to the present inquiry, which has uo reference 



191 Reply to Professor Parker. [April, 

to the differences of construction by different lawyers, but is whether clergymen 
are entitled to pass final judgment, and overrule any and all lawyers with whom 
they differ on such subjects." 

Do you really think, my dear Sir, that this is the question 
between you and me ? When you made that statement of the 
question, did you mean to pretend that, either explicitly or by 
any implication, I have claimed in behalf of clergymen the 
right "to pass final judgment" on questions of constitutional 
law? But what else could you mean, if you considered at all 
the force of the words you were writing ? Surely you must 
have had a very contemptuous opinion of my understanding, 
if you thought that, by any artifice, I could be induced to dis- 
cuss such a question with you or with anybody else. 

The occasion on which you have challenged me to this de- 
bate, was an article which was published in the Congrega- 
tionalist of October 31st, and which the editor of that journal 
took the liberty of announcing as mine. In that article not 
one word was said concerning the rights or prerogatives of 
clergymen — not one word having the remotest allusion to the 
clerical profession. I wrote not as a clergyman but anony- 
mously, and the mention of my name by the editor was neith- 
er intended by me nor expected. How is it, then, that you 
undertake to raise upon that article an issue between the 
clerical profession and the legal? I respectfully deny your 
right to demand that I shall defend any proposition for which 
I have not made myself directly or indirectly responsible, or 
shall discuss with you in this public manner any question not 
germane to the matter of that article. 

For the sake of showing more distinctly how wide of the 
mark your aim is, let me ask you to read again, and to read 
more calmly and accurately than you seem to have done, all 
that portion of my newspaper article which can be regarded as 
having any relation to this first question, whatever it may be. 
The President's " great proclamation " of September 22d, was 
the subject on which I ventured to offer some observations 
from my own point of view. After showing first that the 
President had not been coerced into that great measure, against 
his own judgment, by the importunity of self-constituted 



1863.] Reply to Professor Parker. 195 

advisers ; secondly, that the necessity for it had become, in my 
view, obvious to all who care more for the Constitution and 
the Union than for slavery; and, thirdly, that the proclama- 
tion marks a definite stage in the progress of the war, I 
touched another topic in these words : — 

" Concerning the constitutional power of the President to issue such a procla- 
mation, I have no shadow of a doubt. I am aware that some lawyers have 
undertaken to argue from the Constitution, against the right of the President to 
do what he has done in this respect. But though a hundred lawyers should un- 
dertake to convince me that the government is restrained by the Constitution 
from defending its own existence in a civil war, or that there is any one of the 
rights of a belligerent which it may not exercise in the territory of a state which 
has rejected the Constitution, and made war upon the Union, they can never im- 
pose that absurdity upon me, nor upon any man who is not willing to abnegate 
his own common sense in favor of somebody else's professional sense. I have a 
great respect for lawyers in their place, but I must be permitted to remember 
that lawyership is not the same thing with statesmanship ; and to insist that the 
Constitution of the United States, like the Bible, is to be interpreted by the com- 
mon sense of the people. I find that the inaugural oath of the President, as pre- 
scribed in that document, binds him to the duty, not merely of supporting, like 
all other officers of government, but of preserving, protecting, and defending the 
Constitution, to the best of his ability. I find that the Constitution, in order that 
he may perform his oath, makes him "Commander-in-chief of the army and 
navy." I find that though Congress has the right to declare war, the President 
alone has the right to make war. To my common sense, the right and the duty 
to make war against the enemies of the United States, be they foreigners or 
rebels, involves, or rather is the right and the duty of conquering and crushing 
them by every legitimate method of war. Has the President a right by the Con- 
stitution, and is it his duty, to wage war in South Carolina — has he a right, and 
is it his duty to bombard cities, to burn villages, to cut down groves and forests, 
to obstruct harbors, to turn rivers from their channels, and to mow down regi- 
ments of men in battle, when these measures are necessary to a speedy and thor- 
ough conquest — has he a right to do all this in defiance of the only government 
and laws now existing in that state — and has he not a right to proclaim that, 
after a certain day, unless the people of that state shall in the meantime reestab- 
lish a state government under the Federal Constitution, no distinction shall be 
recognized among them but the distinction between friends and enemies of the 
United States, and that every friend, whatever his former condition, shall be re- 
cognized and protected as a freeman ? Shame on the law-logic which undertakes 
to mystify our common sense! Admit that slaves are property, (though the Con- 
stitution does not know them in any other character than that of ' persons '), 
what then? Is there any preeminent sacredness in that particular kind of 
property ? If the President, or a military commander, acting by his authority, 
may seize private property, when needed for military purposes — if he may take 
cotton, provisions, forage, horses, and all sorts of cattle, from the loyal as well as 



196 Reply to Professor Parker. [April, 

the disloyal — giving to loyal owners an assurance of indemnity hereafter ; may 
he not also take this property with a like assurance of indemnity to loyal owners? 
And if the conversion of all that property from private ownership to the use and 
service of the United States, by a proclamation of freedom to the slaves, is neces- 
sary, as a means of crushing the enemy, then that is just the thing which he must 
do, or violate his oath to ' preserve, protect, and defend the Constitution of the 
United States.'" 

What then is my offense? It is not that I have denied " the 
right of the gentlemen of the Bar to form their opinions upon 
legal subjects, and especially upon the Constitution of the 
United States, and to express their opinion in any manner consis- 
tent with clue courtesy to others." It is not that in behalf of 
the clergy, or as a clergyman, I have pretended to have a bet- 
ter "set of rules by which to determine our constitutional 
rights and duties " than lawyers have. It is not that I have 
claimed for the clergy the prerogative of " passing final judg- 
ment " on questions of constitutional interpretation. Not I, 
but you, have brought into this discussion the suggestion that 
I am a clergyman. Surely you need not be told that in rela- 
tion to any question of jurisprudence to be decided by a court, 
you are the professional clericus, and I am simply a layman. 
All my offense is, that being in the language of your profession 
a layman, I have claimed for myself, in common with all citi- 
zens, the right of private judgment concerning the meaning of 
the Constitution, and that, in exercising my right of private 
judgment, I have dared to reject the opinion, not of all law- 
yers, but of "some lawyers, 1 ' concerning the powers which the 
Constitution permits the President to wield against the ene- 
mies of the United States. The study and practice of your 
profession tends, or should tend, to exactness in the statement 
of a disputed proposition or question. If a student in your 
office, being entrusted with the task of drawing a declaration 
for the plaintiff or a plea for the defendant in a civil action, 
should miss the mark as widely as you have done in your at- 
tempt to raise an issue between yourself and me, about the 
mutual relations of your profession and mine, I think he would 
receive a severe rebuke. 

Should I attempt to state the case for you, when you have 
so greatly failed in stating it for yourself, I might expose my- 



1863.] ' ' Reply to Professor Parker. 197 

self to the charge of presumption. Without undertaking to 
do in form what I think you ought to have done, I will ven- 
ture to make a suggestion or two leading in that direction. 
Evidently you were displeased that I, not being a lawyer, and 
being a clergyman, have professed to think for myself on a 
certain question of constitutional interpretation, and have pub- 
lished an opinion confessedly differing from that of " some 
lawyers," among whom (though I had no thought of you, and 
almost no knowledge of you, at the time) you happen to be 
included. Allow me to say that you might have saved your- 
self some trouble if you had more carefully considered the 
ground of your displeasure before you began to write. Aside 
from the alleged erroneousness of my opinion, and of the con- 
siderations which I offered in support of it ; what is the prin- 
ciple which I violated, and which you are called to vindicate ? 
Is it that your profession has exclusive rights which I have in- 
vaded by thinking for myself, and saying what I think ? Or 
is it that my profession divests me of rights which are common 
to all other citizens ? Let me suggest, respectfully, that in tak- 
ing occasion from the paragraph above cited, to raise an issue 
between " the gentlemen of the Bar " and " the clergy," you 
ought to have taken your position frankly upon one or the 
other of these two principles, or upon both. Do you hold that 
when all citizens are en quiring what the President may do, 
and what he may not do to save the Union and the nation 
from being destroyed by this rebellion, no man who is not a 
lawyer has any right to differ in opinion from any man who is 
a lawyer % Or, do you hold that though other citizens not of 
your profession have a right of private judgment on such 
questions, the fact of my being a clergyman divests me of that 
right ? 

The paragraph, which I have quoted, is all that I said about 
the constitutional right of the President to issue his great proc- 
lamation. It is the only paragraph in which I made any al- 
lusion to lawyers ; for the other aspects and bearings of the 
proclamation involve no legal question. The question, for ex- 
ample, whether the President from the beginning of the war, 
has always intended to adopt this extreme measure if he should 



198 Reply to Professor Parker. [April, 

find it impossible otherwise to suppress the rebellion, is no 
more a question of jurisprudence than it is a question of med- 
icine or theology. The question whether the President was 
right or wrong in thinking that the time had come for this 
extreme measure, and that the attempt to restore the Constitu- 
tion and the Union without recognizing the manhood of the 
enslaved population held in subjection by the enemies of the 
United States had been kept up till its futility was sufficiently 
demonstrated, is not a question on which the opinion of a law- 
yer is to be taken as the opinion of an expert. JSTor is the 
question whether the proclamation marks a definite stage of 
progress in the prosecution of the war, (if there be any doubt 
on the point), a law question. You seem to have an inkling of 
a distinction between the question whether the proclamation is 
expedient and necessary as a measure of hostility against the 
belligerent enemies of the United States, and the question 
whether (its expediency and necessity being admitted) it tran- 
scends the constitutional powers of the President, and violates 
his inaugural oath ; and yet you apply, as a personal reproach 
to yourself, not only what I said about " some lawyers" who 
hold that the President has no power to proclaim the emancipa- 
tion of persons held in slavery by the belligerent enemies of 
the United States, but also what I said about a certain class of 
politicians and demagogues, who pretend that peace can be ob- 
tained, and the Union restored by our continuing to make war 
against the rebels with only one hand, and at the same time 
helping them with the other hand in their unceasing war with 
their millions of slaves. A few words of explanation on this 
point are due to your feelings. 

I offer then, for your relief, this explanation. 

First. In all that I wrote, I had no thought of you either 
as a politician or as a lawyer. Much as it may be to my disad- 
vantage, I must confess that I had no knowledge of your an- 
tipathies and sympathies, or your views concerning the procla- 
mation ; and that if I had been asked, Who is the colleague of 
Prof. Parsons in the Law School at Cambridge, my memory 
might not have enabled me to answer. Secondly. When you 
say that I brand " all lawyers, and all others who do not concur 



1863.] Reply to Professor Parker. 199 

with [me] in having no doubt concerning the eight to issue 
the proclamation," and that I charge them " with ' disloyalty,' 
1 debasing homage to slavery,' and with an intent ' to divide 
the Union or subvert the Constitution,'" you are entirely mis- 
taken. Thirdly. My opinion of the political leaders and par- 
tisans whom I had in view, and whom I denounced as "in fact 
disloyal to the Constitution," remains unchanged. A moment's 
thought will tell you who they are. You know who the men 
are "who have so long paid a debasing homage to slavery for 
the sake of ' saving the Union' that they are now willing to 
sacrifice the Union for the sake of saving slavery." They are 
the men who at this moment are talking in New York and 
New Jersey, in Illinois and Indiana, in Pennsylvania and Ken- 
tucky, about a reconstruction of the Union with New England 
left out. They are the men who at this moment are plotting 
and moving for a compromise with the perjured and bloody 
traitors that rule the rebellion. It was to that sort of men 
that I had reference when I expressed my conviction that they 
"expect nothing else and intend nothing else than some con- 
cession to the rebels, which shall either divide the Union or 
subvert the Constitution." I may have occasion to say more 
about them in the progress of this letter. At present it is 
enough to admit, frankly, that if there are men endowed with 
an ordinary share of common sense, who deny the necessity of 
the military policy inaugurated by the proclamation, and "talk 
about bringing the war to an end in some other way," ^ and 
who at the same time do not expect either a recognized division 
of the Union or the restoration of it by the concession of new 
guarantees to slavery against freedom,— I was mistaken. 
' You seem to be sensitive about my saying that "I have a 
great respect for lawyers in their place" but must neverthe- 
less "be permitted to remember that lawyership is not the 
same thing with statesmanship, and to insist that the Constitu- 
tion of the United States, like the Bible, is to be interpreted 
by the common sense of the people." "What is the place of a 
lawyer ? He may be a judge, and then his place is on the 
bench, applying the law to the individual cases, civil and crim- 
inal, which come into his court for trial and decision. He may 



200 Reply to Professor Parker. [April, 

be a professor of law, and then his place is in the chair of in- 
struction, giving lectures, hearing recitations, initiating his pu- 
pils into the science of law, and training them for the profes- 
sion. If he is neither judge nor professor, his place is in his 
office, giving advice to clients and drawing law papers, or at 
the bar conducting and arguing the causes which are entrusted 
to him. That is what I mean when I say that I have a great 
respect for lawyers in their place. I honor the profession. I 
have no sympathy with any vulgar prejudice against it. I re- 
cognize it as indispensable to the administration of justice in 
society, and inseparable from the working of a government in 
which the rights of property and person are protected by law. 
I honor the illustrious names of the great lawyers who have 
adorned the profession by their abilities and their virtues. At 
the same time my personal acquaintance with lawyers, eminent 
on the bench or at the bar, assures me that to an ingenuous 
mind such studies and pursuits as theirs are an invaluable dis- 
cipline, morally as well as intellectually. So much for the re- 
spect that is due to lawyers in their place. 

A lawyer, then, is in his place when he is attending to his 
professional business in the courts or in his office ; just as a 
clerygymen or a physician is in his place when performing the 
duties of his profession. But when a lawyer meddles with 
public affairs, with questions of political economy or of national 
policy — that is, with questions of statesmanship, he is not less 
out of his place as a lawyer, than a physician who meddles 
with the same questions is out of his place as a physician. 
Statesmanship, whether as a science or as an art, instead of 
being exclusively within the domain of your profession, is 
wholly outside of it — just as it is wholly outside of the medical 
profession. Of course, I do not mean that when a man be- 
comes a lawyer, he loses his right to think and to say what he 
thinks on questions of public interest. "What I mean is, that 
his right to think and speak on public affairs belongs to him not 
as a lawyer but as a citizen ; and that, therefore, the physician, 
the civil engineer, the schoolmaster, or college professor, the mer- 
chant, the manufacturer, the farmer, and even the clergyman, 
being citizens as well as he, have precisely the same right. 



1863.] Reply to Professor Parker. 201 

Lawyers are an intelligent class ; their professional knowledge, 
and the discipline of their professional studies and pursuits, 
qualify them to bear an important part in the discussion of 
public questions; but other men are also intelligent, and may 
contribute something, each from his own stand-point, to a wise 
and safe decision of questions in which all are interested. Even 
if I should concede that in this democratic country lawyers as 
a class are more likely than any other class to have the special 
knowledge and training which qualify a man for statesman- 
ship, I cannot forget that some disadvantages, as well as many 
advantages in respect to the higher walks of political science, 
are incident to that profession. Your profession, as well as 
mine, has its infirmities, its technical ways of thinking, its nar- 
row traditions, its superstitious deference to formulas ; and 
these must be thrown off before the mere lawyer can become 
a true statesman. You have not forgotten what Burke said 
of Grenville : 

" He was bred in a profession. He was bred to the law, which is, in my opin- 
ion one of the first and noblest of human sciences, a science which does more to 
quicken and invigorate the understanding, than all the other kinds of learning 
put together, but it is not apt, except in persons very happily born, to open and 
liberalize the mind exactly in the same proportion "* 

Nor can you have failed to note what he said of lawyers on 
another occasion : 

" Lawyers I know, cannot make the distinction for which I contend, because 
they have their strict rule to go by. But legislators ought to do what lawyers 
cannot for they have no other rules to bind them but the great principles of 
reason and equity and the general sense of mankind. These they are bound to 
obey and follow; and rather to enlarge and enlighten law by the liberality of 
legislative reason, than to fetter and bind their higher capacity by the narrow 
constructions of subordinate artificial jastice."f 

So much for the difference between lawyership and statesman- 
ship. 

You admit " that among the lawyers themselves there is a 
difference of opinion upon various questions of constitutional 
law." Indeed the fact was too notorious to be overlooked, 
that, on this very question concerning the constitutional power 



* Burke. Works, I, 451. Boston: 1839. \ Ibid. II, 95. 



202 Reply to Professor Parker. [April, 

of the President, you are at variance with lawyers whose emi- 
nence in the profession is equal to yours. Why, then, have 
not I the same right to dissent from you that you have to dis- 
sent from President Lincoln, who, as you know, is an eminent 
lawyer, and from Attorney-General Bates, who is, professional- 
ly, more eminent still, and from the multitude of eminent law- 
yers in Congress and in all the loyal States, who are known to 
believe that the great measure announced in the Proclamation 
is legitimate in the present condition of the country ? You 
make no reply, that I have heard of, to the exhaustive argu- 
ment of Mr. "Whiting.* Why not ? Why pour out your seven 
vials of reply upon so slight a thing as a newspaper article from 
a Connecticut clergyman ? You forego 

" The joy which warriors feel 
la foemen worthy of their steel," 

that you may stoop to an argument with me. Why ? I can 
see no other reason than that you deem it quite tolerable for 
lawyers to differ among themselves on the meaning of the Con- 
stitution, and quite intolerable for a man who is not a lawyer, 
or at least for a clergyman, to differ in opinion on the same 
subject from any man who is a lawyer. 

What, then, am I to do? As a citizen and elector I have 
responsibilities of which I cannot divest myself. I share in the 
sovereignty not only of my own state but of the United States. 
I have taken an oath of fidelity to the Constitution. As an 
elector I must vote to sustain or condemn the administration 
in its conduct of the war. But if there is no right of private 
judgment on the meaning of the Constitution — if I, being not 
a lawyer but a clergyman, have no right to differ in opinion 
from any man who is a lawyer — I am in a predicament in which 
God, I am sure, never intended to put any responsible creature. 
Under the obligation of an oath, as sacred as that of a juror, I 
must either sustain the administration or condemn it on this 
very issue of its conformity to the Constitution ; and yet, inas- 



* The War Powers of the President, and the Legislative Powers of Congress in 
relation to Rebellion, Treason, ani Slavery. By William Whiting. Boston : 
John L. Shorey. 



1863.] Reply to Professor Parker. 203 

much as I am not a lawyer but a clergymen, I must not differ 
in opinion, from any man who is a lawyer. I cannot adopt 
your opinion, for in that case I shall diifer from Professor Par- 
sons, your learned colleague, and from Judge Bates, the Attor- 
ney-General, and from President Lincoln, and from all the law- 
yers in the cabinet, and from many sagacious, learned, and up- 
right lawyers with whom I am personally acquainted. I can- 
not adopt their opinion, for in that case I shall differ from you, 
and I know not how many more, whose professional learning 
and integrity I would not disparage. Shall I retain a lawyer 
as my constitutional adviser, and " go it blind" under his di- 
rection? But even in that case must I not first exercise my 
private judgment, and then choose for the director of my con- 
science some lawyer whose construction of the Constitution I 
know to be sound ? 

Such are some of the absurdities into which we are led by 
the principle that none but lawyers may interpret the Consti- 
tution for themselves. In opposition to that principle I assert 
the sacred and inalienable right of private judgment. The de- 
nial of that right in respect to the interpretation of the Bible 
establishes the priesthood as a spiritual aristocracy, and tends 
to the speedy and entire corruption of Christianity. Just so 
the denial of that right in respect to the interpretation of the 
Constitution sets up a political hierarchy of lawyers, and tends 
to subvert the Constitution itself. Let it be universally con- 
ceded that the people, when called to pronounce their verdict 
on the measures of the government, must not judge for them- 
selves what their rights are, and their duties, but must exercise 
their political power under the dictation of " the gentlemen of 
the Bar " — and instead of the Constitution we have only the 
ever-accumulating tradition of hierarchical or professional in- 
terpretations. The men who in our Saviour's time were wont 
to say, "This people, who knoweth not the law, are cursed," 
denjdng to the laity the power of judging for themselves, were 
none other than the men who had made the word of God of 
none effect through their tradition. When the law of Moses 
had been given into the hands of a professional class to be in- 
terpreted by them exclusively and authoritatively, the result 



204: Reply to Professor Parker. [April, 

was that not the sacred Law itself, but the Talmud, with its 
Mishna and Gemara, became the rule from which there was no 
appeal. As firmly as I believe that the chief security, under 
God, for the continued life of the Christian religion revealed 
and recorded in the Bible, is in the people's right of private 
judgment, ever subjecting the authority of dogmas and tradi- 
tions to the higher and primitive authority of the scriptures ; 
so firmly do I believe that the chief security, under God, for 
the system of popular self-government established by the Con- 
stitution is in the people's right of private judgment, bringing 
Dred Scott decisions, and everything else of that sort, to the 
review of that higher tribunal where the Constitution, in the 
last appeal, is interpreted by the people's common sense and 
enforced by the people's power of choosing their own public 
servants. You are at liberty to instruct the people if you can, 
and to enlighten and guide their common sense ; but your lib- 
erty in this respect is also mine. 

Intelligent theologians, of all Protestant names, have learned 
long ago, not to be offended by any honest attempt of laymen 
to interpret for themselves the documents of our religion. We, 
of the clerical profession, have learned that religious and theo- 
logical knowledge (the specialty of our profession) may be 
sometimes advanced by the studies and publications of men who 
have never been taught by theological professors, and on whom 
no ordaining hands were ever laid. We have learned to be 
thankful rather than angry, when intelligent and earnest men 
whose training and habits have not qualified them for the pul- 
pit, and whose discourses, if they should attempt to preach, 
would have no special charm or power for popular assemblies, 
interest themselves in the discussion of religious and theologi- 
cal questions. Few professional theologians, within the last 
half century, have done more for the science of religion, by 
their writings, than has been done by those two great lay teach- 
ers, Coleridge and Isaac Taylor. And is it not possible that 
an intelligent and honest man who is not a professional 
lawyer may sometimes have sense enough to be in the right 
on a question of constitutional interpretation, or on some 
great principle of jurisprudence, on which some lawyers, by 



1863.] Reply to Professor Parker. 205 

reason of their bondage to precedents, and their technical wa} r s 
of thinking, have erred ? John Hampden was not a lawyer ; 
but he knew what English law was, on one point, better than 
a majority of the twelve judges of England. Granville Sharp 
was not a professional lawyer, but he had the sagacity which 
enabled him to deduce from the elements of English jurispru- 
dence the great principle that slavery cannot exist in Eng- 
land — a principle which the lawyers themselves had not dis- 
covered till he taught them. 

"While I maintain that the Constitution of the United States 
is a document not for lawyers only but for the people, and is 
therefore to be interpreted, ultimately, by the people's common 
sense, I freely admit that in some passages of that great instru- 
ment there are words and phrases which belong rather to the 
technical dialect of English jurisprudence than to our common 
English tongue, and which require, therefore, some technical 
knowledge in the interpretation. For example, a plain man 
may be dependent on a law dictionary, or some such authority, 
to tell him what is meant by " the writ of habeas corpus," and 
what is meant by " the privilege " of that writ ; but, having 
obtained a sufficient answer to those two questions, he can see 
for himself the meaning of the constitutional provision that 
" the privilege of the writ of habeas corpus shall not be sus- 
pended, unless wdien in cases of rebellion or invasion the public 
safety may require it." So he may not know what a " bill of 
attainder " is, till he has obtained the information from some- 
body versed in legal technicalities ;, and possibly he may not 
know what an " ex post facto law " is, till he has inquired of 
the schoolmaster or of some intelligent neighbor ; but, having 
learned the meaning of those phrases, he needs no lawyer to, 
tell him what the Constitution means by saying that " no bill 
of attainder or ex post facto law shall be passed," There is. 
one sentence which preeminently requires a knowledge of 
phrases peculiar to the science of law. " The Congress shall 
have power to declare the punishment of treason ; but no at- 
tainder of treason shall work corruption of blood, or forfeiture,, 
except during the life of the person attainted." What is an 
"attainder of treason?" What is "corruption of blood?" 

vol. xxii. 14 



206 Reply to Professor Parker. [April, 

What is " forfeiture," when used in such a connection ? What 
is the meaning of the verb " attaint "? Both houses of Con- 
gress are full of lawyers, but, strangely enough, on this one 
sentence which it is their business to interpret, the lawyers 
were at fault. I cannot but suspect that the ablest men of 
your profession are among those who do not go to Congress. 
Had you been there in 1862, you surely could have told the 
conscript fathers that the limitation on the power of Congress 
to declare the punishment of treason had no other purpose than 
to exclude from our national legislation that principle of the 
English common law which punishes the convicted and sen- 
tenced traitor by making his children and all his posterity par- 
takers in his punishment, and which not only punishes him 
personally by the forfeiture of his life and of all his actual pos- 
sessions, but punishes them also by the forfeiture of whatever 
might afterwards have descended to them as his heirs. The 
statesmen who framed the Constitution understood right well 
the penalties of treason under the English law, for the time had 
been when they were deeply interested in that subject. For 
reasons which they had learned to appreciate, they deter- 
mined that, under the Constitution which they were framing, 
there should be no place for that theory or fiction of the com- 
mon law by which the tincture, taint, or attainder of treason 
works corruption of blood with all its incidents and conse- 
quences ; and that under no other pretense should the innocent 
heirs of a convicted and sentenced traitor be hindered from in- 
heriting through him or from him. Therefore they provided 
not only that there should be no corruption of blood by attain- 
der of treason, but also that no attainder of treason should work 
the forfeiture of any property other than that of which the per- 
son attainted was the owner in his life time. No attainder of 
treason, under the Constitution and laws of the United States, 
can " extend to the disinheriting of any heir nor to the preju- 
dice of any person other than the traitor himself." Yet the 
lawyers in Congress seem not to have known distinctly the 
meaning of this proviso. Having enacted a new statute for 
the punishment of treason, they seem to have feared that it 
was not quite constitutional, and they supplemented it with 
#n explanatory resolution. They took a distinction, unwar- 



1863.] Reply to Professor Parker. 207 

ranted by the text of the Constitution, between real estate 
and personal; and though their statute requires an absolute 
forfeiture and sale of property in certain eases, their supplemen- 
tary explanation provides that no punishment or proceedings 
under the statute shall be so construed as to " work forfeiture 
of the real estate of the offender beyond his natural life."* 

The Constitution, then, is to be interpreted by common sense, 
and ultimately by the common sense of the whole people. If 
it uses, here and there, a law phrase, we may ask lawyers to 
tell us what the meaning of those words is, or rather what it 
was when the Constitution was framed, but when we know 
what those few technical words mean, the meaning of the Con- 
stitution, in what it requires and in what it forbids, in what it 
cedes and in what it withholds, is as intelligible to one intelli- 
gent man as to another. The rules and principles of interpre- 
tation which you quote from Blackstone and from Story are 
rules and principles with which every clergyman well educated 
in his own profession is thoroughly familiar ; for they are essen- 
tially the same with those which in the language of theologi- 
cal seminaries are called the science of Herincneuties. They 
are just what I mean when I say that the Constitution is to be 
interpreted by the people's common sense, for the science of 
ITermeneutics, whether for lawyers or for divines, whether ap- 
plied to the statute book or to the Bible or to any other com- 
position in any human language — is nothing else than an at- 
tempt to delineate in a scientific way the processes of thought 
by which a reader of good common sense ascertains the mean- 
ing of what is written or printed on the page before him. It 
is somewhat remarkable that one of the passages which you 
have cited from Story, announces the identical proposition on 
which I insist, to wit, that the Constitution is to be interpreted 
not by professional subtlety, but by common sense. Allow me 
to repeat the quotation : 

" Constitutions are not designed for metaphysical or logical subtleties, for nice- 
ties of expression, for critical propriety, for elaborate shades of meaning, or for 
the exercise of philosophical acuteness, or juridical research. They are instru- 
ments of a practical nature, founded on the common business of human life, adapted 
to common wants, designed for common use, and fitted for common understand- 

* See New Englander, Oct. 1862, p. 716. 



208 Reply to Professor Parker. [April, 

ings. The people make them ; the people adopt them ; the people must be sup- 
posed to read them, with the help of common sense ; and cannot be presumed to 
admit in them any recondite meaning, or any extraordinary gloss." 

Some clergymen, no doubt, are deficient in common sense, 
and for that reason fall into great mistakes in the interpreta- 
tion not only of the Constitution but of the Bible, and of what- 
ever else they happen to take in hand. The same thing is true 
of " some lawyers," and of some men in every profession. If 
they blunder, it is not because they are lawyers, or clergymen, 
or of some other profession, but because they are deficient in 
common sense. But when a clergyman happens to be thus de- 
ficient, he is not thereby divested of his rights as a citizen any 
more than if he were a lawyer. lie may still try to understand 
the Constitution with such sense as he has ; and his right to say 
what he thinks about it, is no less sacred than yours. In pro- 
portion to the greatness of his deficiency in common sense, his 
vagaries will be harmless; for the people who have common 
sense are not easily imposed upon by individuals who have 
none. A lawyer with much professional learning and with a 
deficiency of common sense, is 'much more likely than any 
clergyman to mislead the people when he misinterprets the 
Constitution. Such a lawyer would naturally claim the right 
to speak as one having authority, and to impose his opinion on 
the unlearned. The many who never take the trouble to think 
for themselves are likely to acknowledge his claim, for the reason 
that he is a lawyer and a learned one, and professes to speak 
by authority. 

Just here is a difference which you, perhaps, have not dis- 
tinctly thought of, between your profession and mine. Law- 
yers, you know, are accustomed to express their opinions au- 
thoritatively, so far as the laity (that is, the unlearned in the 
law) are concerned, and to debate questions of law only among 
themselves. A client has no occasion to understand the grounds 
or reasons of the opinion which his professional adviser gives 
him concerning a point of law ; he is under the necessity ot 
trusting his advisers and leaving his cause in their hands. A 
clergyman, on the contrary — a Protestant clergyman — ought 
.to show his hearers good reasons for the doctrines which he pro- 
pounds. ".Search the Scriptures," is a leading maxim not for 



1863.] Reply to Professor Parker. 209 

him only, but for his hearers. He expects and exhorts them 
to try all his statements of doctrine and of duty by the stand- 
ard of the Bible. We need not wonder then if some clergy- 
men venture to inquire into the grounds and reasons of opin- 
ions concerning the meaning of the Constitution, instead of rest- 
ing simply on the authority of this or that lawyer ; nor, if on 
the other hand "some lawyers" are impatient of the imperti- 
nence, as they deem it, with which many clergymen, in common 
with many other citizens, distrust and even contradict the in- 
terpretations of the Constitution authoritatively set forth by 
gentlemen of the bar in popular harangues, or in newspaper 
essays. The lawyer's studies and his professional practice are 
continually training him in the intellectual habit of deference 
to authorities, — by which I mean not only deference to the 
sovereignty whose will ordains the law, and is recorded in the 
written statute, but deference to precedents and learned opin- 
ions which tell him what the law is. His lucubrations, from 
the beginning of his studies through his whole course of service 
at the bar or on the bench, are not exclusively in codes and 
statute books. The learning of his profession, accumulated' in 
countless volumes, is almost nothing else than a body of tra- 
ditions, decisions and opinions, resting on the authority of great 
judges and great lawyers. In the profession of law, therefore, 
authority is everything. But in the science of theology and 
religion, as held by Protestants, authority, other than that of 
the Scriptures, is nothing. 

Do not understand me as meaning or implying any disre- 
spect to your profession. I have nothing to say against what 
Jeremy Bentham used to call "judge-made law." On the 
contrary, it is the glory of jurisprudence, both English and 
American, that because it consists so largely in traditionary 
rules and principles, in the accumulation of judicial decisions, 
and in the opinions of great lawyers, it is capable of continual 
progress and of continually reforming its own errors. The 
science of law is common sense (including the sense of right 
and wrong) applied to the interpretation of statutes and the 
administration of justice. It must needs advance, therefore, 
with the progress of civilization. As the common sense of the 



210 Reply to Professor ParJcer. [April, 

people (including their moral sense) becomes more intelligent, 
the law, not only in the form of statutes, but in the form of 
judicial decisions and precedents, undergoes a corresponding 
change. The "judge-made law," which the chimerical philoso- 
pher of Utilitarianism so abhorred, is an inevitable incident of 
the administration of justice by courts of law, as distinguished 
from an attempted administration of justice by arbitrary 
power. At the same time, it is as really as the statute-law, 
though in a different way, amenable to the moral influences 
which act upon society. If the course of judicial decisions is 
in conflict with the moral sense of the people, and with their 
common sense, the anomaly cannot continue long unless the 
people are thoroughly enslaved ; for everybody knows that in 
strict propriety of speech there is no " judge-made law." 
Doubtless " some lawyers " are heedless enough to forget this, 
and to talk as if the interpretation of the Constitution on one 
point and another Avere irreversibly " settled " by judicial 
authority ; but you are not one of that sort. It would be un- 
courteous if I should suppose it possible for you to forget that 
a court has no more right or power to make new law in any 
case tried before it, than it has to make new facts. The duty 
of judges is not to ordain what the law shall be, but only to 
declare what the law is ; and if through fear or favor — if 
under the influence of a bribe, or of some personal or partisan 
interest — if by reason of their ignorance and intellectual ob- 
tuseness, or by reason of their moral perverseness, they declare 
that to be law which was not law till they declared it, the law 
remains unchanged. In the case of John Hampden nine 
of the twelve judges declared unequivocally, after a protracted 
trial, that by the law of England the king might lay a certain 
tax without consent of parliament ; yet everybody knows that 
in giving such a decision those judges simply declared that to 
be law which was not law, and that the king's attempt to levy 
a tax under the name of ship-money was just as unlawful after 
that decision as before. So in the case of Dred Scott, a ma- 
jority of the judges attempted to change the Constitution of 
the United States by the legerdemain of their " law logic." 
But did they change the Constitution ? No, they only violated 



1863.] Reply to Professor Parker. 211 

the Constitution by turning a poor man out of their court, 
denying him the justice they were sworn to administer, and 
consigning him to slavery, under a false pretense. The fact 
that for that plaintiff spurned from their presence, there was 
no appeal but to the justice of God, so that the wrong he 
suffered was without a remedy in this world, cannot diminish 
by one hair-breadth the injustice or the falsehood of the decis- 
ion. After that decision the Constitution remained just what 
it was before. — a plain, intelligible document, without the 
faintest allusion to any distinction of race or complexion 
among the various classes of the population, (save when the 
semi-independent " Indian tribes " are mentioned), and with 
out the remotest implication of the principle which the con- 
spirators (of whom the Chief Justice was on that occasion the 
organ) intended to interpolate into the supreme law of the 
land. 

No dishonor, then, is imputed to lawyers for their profes- 
sional deference to authority, when I insist that the interpreta- 
tion of the Constitution is not the prerogative of any one class 
of citizens. All citizens, clergymen not excepted, are to read 
the Constitution for themselves ; and it is the right of every 
citizen to inquire what the Constitution means, to receive light 
on doubtful or disputed points from whatever quarter it may 
come, and to give out his opinion in conversation or in public 
discourse, orally or in print. No doubt a learned and experi- 
enced lawyer ought to be right. Yet, even so learned a law- 
yer as you are cannot be recognized as infallible ; and, there- 
fore, in a case in which you are of one opinion, while some 
clergyman, or some cobbler, ventures to be of a different opin- 
ion, it is not only conceivable but possible that your interpre- 
tation is wrong, and that of the clergyman or the cobbler 
right. 

I find that I have treated this preliminary question about 
the comparative rights of lawyers and clergymen to interpret 
the Constitution, more at length, and in a more rambling way, 
than I intended. Had you been so kind as to state more 
exactly the position which you hold and the question you 
desired me to discuss, you would have saved me this trouble. 



212 Reply to Professor Parker. [April, 

The operation of " shelling out the woods" in which an adver- 
sary may, perhaps, be lurking with his masked batteries, is in- 
evitably attended with some waste of ammunition. 

Proceeding now to the main question, I am relieved of the 
difficulty which has embarrassed the preliminary discussion. 
We know what the question is. You maintain, and I deny, 
that the President in issuing and attempting to carry into effect 
the proclamation of September 22d, 1862, has .violated the 
Constitution of the United States. The issue involves these 
subordinate questions: First, What guarantees and pledges 
does the Constitution give, and what duties does it impose 
upon the Federal Government, in relation to slavery in the 
several states of the Union ? Secondly, What are the powers 
with which the President is invested, in time of war, against 
the enemies of the United States ? Thirdly, Is there anything 
in the Constitution, or in the law of nations, that forbids his 
using those powers for the suppression of the rebellion % These 
three questions seem to comprehend all the points of your 
argument. I hope that in the discussion, guided as I am by 
your perspicacity and learning, I shall overlook nothing that is 
really important to a right conclusion. 

I. Relatione of the Federal Government to Slavery in the 
several States. 

It is commonly assumed by a certain class of politicans who 
have had too much success in their endeavors to mislead the 
public, that the Constitution is essentially a compact between 
slaveholding states and free-labor states ; that some distinctive 
rights — not very well defined but commonly spoken of as 
" Southern rights " — are secured to the slaveholding states ; 
that the conservation of slavery is one chief end for w T hich the 
Pederal Government was instituted ; and that to speak or 
write against slavery is to violate the spirit if not the letter of 
the Constitution. You need not be told that all these assump- 
tions are unwarranted. But as what I am writing is likel} 7 to 
be read by many persons less accurately informed than you, I 
may be allowed to explain what the Constitution is in its bear- 
ings on slaver}-. 

1. The Constitution makes no mention of slaves or slavery. 



1863.] Reply to Professor Parker. 213 

It uses no words synonymous with these. It knows nothing 
of the relation in which one man is the property of another, 
and is liable in law to all the incidents of property. Nobody, 
not otherwise informed, would be able to obtain from the 
language of that charter the conception of a Helot race having 
no rights which the dominant race was bound to respect, 
bought and sold like cattle in the market, legally incapable (as 
brute cattle are) of domestic relations, liable to the infliction 
of torturing punishment at the caprice of irresponsible power, 
and compelled to labor without wages and with no share in 
the proceeds of their labor. 

2. This omission is the more significant when we remember 
that, at the date of the Constitution, negro slavery, as above 
described, existed in a majority of the states ; that in other 
states it existed under certain modifications restraining its 
essential barbarism and securing its early extinction ; and that 
in one state it had been absolutely abolished by the will of 
the people expressed in a declaration of rights. Of course the 
omission of the words slave and slavery, and of all synony- 
mous words, from a national Constitution designed to form " a 
more perfect union" of such states, was not accidental. A 
critical reader with no information concerning the subsequent 
course of events, would say that the intention must have been 
to free the Federal Government from all complicity with the 
institution of slavery. The Constitution knows nothing about 
human beings held as property — men, women, and children, 
whose legal status is that of merchandise ; and the Govern- 
ment which it established ought to have been equally igno- 
rant. In the intendment of the Federal Constitution all 
human beings, whatever they may be in the intendment of 
state legislation, are nothing else than persons "endowed by 
their Creator with inalienable rights." 

3. If there were any need of showing by testimony that not 
only the omission of the words slave and slavery, and of all 
synonymous words, from the Constitution, but the exclusion of 
the idea and definition of slavery was intentional on the part 
of the Convention that framed the Constitution, such testi- 
mony is not wanting. The debates in that Convention, as 



214 Reply to Professor Parker. [April, 

written down at the time by the diligent hand of James 
Madison, show that the omission in question was not because 
the Convention was squeamish about the use of disagreeable 
words, but because the leading members of that body were 
perpetually vigilant lest the Constitution they were framing 
might, by some circumlocution, seem to recognize slaves as 
property. In one instance, at least, the language of the instru- 
ment was modified, after discussion, expressly for the purpose 
of excluding the possibility of such a construction. If, then, 
the Constitution recognizes slaves as property ; or, if it recog- 
nizes slavery, in distinction from other forms of service, as an 
arrangement to be upheld at all hazards by the Federal Gov- 
ernment, it has a meaning which the framers of it expressly 
intended it should not have. 

i i. This view is confirmed by an examination of the particu- 
lar clauses sometimes referred to by those who would have us 
believe that the Constitution recognizes slaves as property and 
guarantees slavery against all interference. In neither of 
those clauses are slaves spoken of under the specific denomi- 
nation of slaves, or the specific description of human beings 
owned as property; but in each instance they are included 
under a more generic description. If the Constitution has 
occasion to provide that a slave escaping from one state into 
another shall not therefore be free, but shall be given up on 
the claim of his master, it does not describe the fugitive as a 
slave, bnt only as a "person held to service or labor" — a de- 
scription which includes the apprentice, the redemptioner, and 
the peon, as well as the slave. Nor does it speak of the 
master as the owner of a stray chattel, but only as " the party 
to whom such service or labor maybe due" — a description 
which makes the relation between the fugitive and the claim- 
ant the relation of a debt, to be paid not in money but in 
personal service. If the Constitution' has occasion to arrange 
and define a compromise between the apportionment of repre- 
sentatives and direct taxes among the several States according 
to their gross population, and the apportionment according to 
their free population, it says nothing about slaves, but com- 
prehends them under the general description of persons who 



1863.] Reply to Professor Parker. 215 

are neither free nor held to service for a term of years, — a de- 
scription which includes peonage and the condition of peasants 
adscripti glehce, as well as slavery, and which in every applica- 
tion of it, is far from implying that the "persons" described 
are regarded as property. If the Constitution has occasion to 
define the date at which the Federal Government shall be in- 
vested with full power for the suppression of the African slave- 
trade, it speaks not of the slave-trade nor of Africa, but of " the 
migration or importation of such persons as any of the States 
now existing may think proper to admit ;" and every word 
which it employs is just as applicable to free emigrants from 
any European or Asiatic country as it is to slaves from Africa. 

5. There is no room then to misunderstand the animus of 
the Constitution in regard to slavery. Not only does that 
great charter of our Government avoid all recognition of 
slavery as distinguished from service for wages under the obli- 
gation of a voluntary contract ; but it expressly stigmatizes all 
systems and methods of servitude in which the obligation to 
service is not for a definite term of years, by providing that 
such a population, whether slaves, or peons, or peasants bound 
to the soil, shall be reckoned as worth to the commonwealth 
only three-fifths of what they would be if they were free or 
had a sure and definite expectation of freedom. Thus it holds 
forth to every state containing such a population a standing 
offer that whenever the state shall have abolished its system of 
servitude, or shall have limited by " a term of years" the per- 
sonal servitude of all who, by its laws, are held to service, it 
shall be permitted to represent in Congress, and in the Electoral 
Colleges, not three-fifths only, but five-fifths of that heretofore 
degraded population. Instead of the theory so common among 
vulgar politicians — the theory incorporated into the Dred 
Scott decision — namely, that the Constitution abhors a free 
negro, and regards slavery as the normal condition of the 
African race — we have the palpable fact that in the estimate 
of the Constitution the conversion of a negro slave into a free 
negro adds forty per cent, to his value as related to the wealth 
and power of the State. 

0. I do not pretend that slavery was abolished by the Con- 



216 Reply to Professor Parker. [April, 

stitution. My position is, that neither the Constitution, nor 
the government created by it, has anything to do with uphold- 
ing, perpetuating, or defending that particular institution. Sla- 
very existed before the Constitution, not by the law of nature 
and of nations, nor by the inherited common law of England, 
nor by any provision of the old Confederation, but simply by 
the local law of each several State which had not abolished 
the barbarism. So it has existed since the organization of our 
Federal Government, and exists to-day, not by virtue of the 
Constitution, nor by any authority derived from it, but only by 
the local law r of certain States. Those States, in the exercise 
of powers not delegated to the Union, make one man the prop- 
erty of another ; and because he is property, they make him 
legally incapable, not only of political, but of civil and social 
rights. They deny him the right to the use of his own facul- 
ties as a human being. They deny him the right to ow r n any- 
thing, save as a horse may be said to own the shoes that are 
nailed to his hoofs, and perhaps the blanket that coves him in 
his stall. They deny him the right of a husband in his wife, 
and of a father in his children, making the factitious right of 
his owner and theirs paramount to all that is sacred in those 
natural affections and duties which are the first rudiment of 
society. But of all this the Federal Constitution knows nothing. 
For all these wn-ongs it has no responsibility. Whatever the 
slave may be in the theory and intendment of the local law, 
established and executed by the State, the Federal Constitution 
knows him not as a thing, but only as a man — a " person held 
to service." The four millions of slaves, in the national census 
of 1860, are not property, but population, inhabitants whose 
human nature contributes to the aggregate power of the nation, 
though the tenure by which they are held to service under 
state laws, makes them an inferior class, less valuable by two- 
fifths than they would be if their human nature, with all its 
capabilities of want and aspiration, of knowledge and progress, 
of hope and love, could have fair play. 

7. The Federal government has no authority to execute 
state laws. In each several state the local law is made by an 
authority distinct from that of the nation as a whole, and is ad- 



1863.] Reply to Professor Parker. 21 Y 

ministered exclusively by magistrates whose power is derived 
from the same source with the law itself. The national gov- 
ernment has nothing to do with the execution or enforcement of 
any laws but its own. It cannot interfere to protect a wife 
against the cruelty of an unnatural husband ; nor can it release 
an injured husband from his legal obligation to a faithless wife. 
As little can it interfere in behalf of a master against his ap- 
prentice or his slave, or in behalf of the -'person held to ser- 
vice" against "the party to whom such service or labor may 
be due." The only exception, or pretended exception, to this 
is when the "person held to service or labor in one State under 
the laws thereof;' has escaped into another State. In that case, 
and no other, it has been held by Congress and by the Courts, 
and generally admitted by the American people, that the Fed- 
eral authority is to interfere by a law of its own for the cap- 
ture and delivery of the fugitive, which it must execute by its 
own officers. I have not forgotten the opinion of the late Dan- 
iel Webster, that this exception ought not to have been made ; 
but without raising that question it is enough to say that in 
this instance the exception proves the rule. No functionary of 
the Federal government, whether civil or military, has any- 
thing to do with the administration or execution of the local 
laws & peculiar to every State. Has it ever been claimed that 
the national authority is bound by the Constitution, or is in- 
vested with constitutional power, to interfere, within the juris- 
diction of a State, to protect the slave against the severity of 
the master % On what theory can it be pretended that the 
same authority is bound, or is authorized to protect the master 
against the indolence or the fugacity of the slave? 
°So much it has seemed necessary to say concerning the re- 
lations of the national Constitution and government to slavery 
in the several states. If these views are correct, the conclusion 
is unavoidable, that in refusing to recognize slaves as property 
and as liable to the incidents of property, or to assume at any 
place the administration of the local laws which establish and 
sustain the institution of slavery, the President and Congress, 
and the officers, civil and military, under their authority, abdi- 
cate no duty imposed upon them by the Constitution. With- 



218 Reply to Professor Parker. [April, 

out venturing to censure in any respect the course of the admin- 
istration, I cannot but think that if President Lincoln had 
taken this ground, distinctly and unequivocally, from the be- 
ginning, some serious difficulties which he has encountered in 
the conduct of the war, would have been obviated. For ex- 
ample, the answer which General Butler made to a Virginian 
slaveholder, and which has given a new meaning to the word 
" contraband," was an ingenious evasion by which a shrewd 
lawyer, holding the political heresy that slaves are property 
under the Constitution, succeeded in reconciling his theory as 
a lawyer with his obvious duty as a patriot soldier. And in- 
deed if slaves are property, they are a kind of property which 
ought not to be left in possession or within reach of the enemy, 
for neither quinine, nor saltpetre, nor lead, nor fulminating 
powder for percussion-caps, is so important to the enemy in a 
military view, as slaves who understand that they have nothing 
to hope from the success of our arms. But suppose General 
Butler had said to that Virginian, "The man whom you pro- 
pose to seize and carry off is indeed within my lines, and for 
aught I know he may be your slave under the law of Virginia ; 
but I am not here to decide any question between you and 
him, nor to administer your local law ; nor will I permit any 
unoffending man to be seized in my camp without process of 
law. Where is your writ or warrant from some competent 
authority under the Governor of Virginia ?" This would have 
raised the question, " Is there any Governor of Virginia ? and 
if so, who is he ? " No man recognizing John Letcher as Gov- 
ernor, or the usurping body at Richmond as the legislative 
power in that state — no man refusing to recognize Governor 
Pierpont and the state legislature at "Wheeling, should have 
been tolerated for a moment in claiming under the laws of a 
government not recognized by the United States the ownership 
of a human being. This position, which is the only position 
consistent with the genius of the Constitution, would have 
made it plain to all men from the outset, that where there is 
no state government, there is no power to legalize or sustain 
the law of slavery in any of its distinctive elements. It would 
have been an effectual proclamation to all the conservatives of 



1863.] Beply to Professor Parker. 219 

slavery, south and north, that there can be no recognition of 
the relation between master and slave by any Federal author- 
ity, save at the demand of a state government adhering to the 
Constitution and the Union. But the administration was nat- 
urally embarrased by the traditions which it had inherited 
from predecessors who seem to have thought that the oath of 
loyalty to the Constitution was nothing else than an oath of 
loyalty to slavery. 

These elementary views illustrate only the normal relation 
of the Federal Government to slavery as an institution created 
and administered by the local laws of certain states in the 
Union. I now proceed to another topic. 

II. Powers and Duties of the Federal Government in rela- 
tion to enemies of the United States. 

The men who formed the Constitution, and the people who 
adopted it, had just emerged from a seven years' war, on their 
own soil, with one of the most powerful nations of the old 
world, a war which was at the same time a civil war. Expe- 
rience had taught them the needfulness of such a government 
as would have ample power to prosecute any future war against 
the enemies of the United States. Experience had taught 
them, too, that, by the necessity of the case, war, and especial- 
ly civil war, invests a government with powers for the defense 
of liberty which cannot be wielded in time of peace without 
implying the loss of liberty. The Continental Congress, with 
no formal grant of powers from the several states, had placed 
itself at the head of the nation in its conflict for existence, had 
made the Declaration of Independence, had raised armies in 
the name of the Union, had issued bills of credit with no other 
basis than requisitions on the states for money which the states 
might pay or refuse to pay at their discretion, had invested 
their commander-in-chief with almost dictatorial powers, had 
sent forth embassies and negotiated treaties, had conducted the 
war to a successful termination, and having lost by that great 
success, the powers which every government that conducts a 
war must wield against the enemies of the nation, it had be- 
come too weak for the easier functions of government in time 
of peace. A new government was to be instituted for the na- 



220 Reply to Professor 2 Parker. [April, 

tion ; and the experienced statesmen in tlie convention well knew 
that if they could institute a government which should perform 
its functions steadily and efficiently, and without danger to lib- 
erty, in times of peace, and which should be entrusted with 
the duty and the power of the national self-defense, war. 
whenever it might arise, would invest that government with 
all power against the enemies of the United States. The Con- 
stitution formed by their wisdom takes certain powers from the 
several states and gives them to the Union. It entrusts the 
exercise of those powers to a national government, distributing 
them according to their nature, some to Congress, some to the 
President, and some to the courts which Congress is required 
to institute. It carefully reserves certain rights to the several 
states and to the people; it provides for justice to "foreign 
states, citizens or subjects ;" but it takes no care to protect the 
enemies of the United States against the government which it 
establishes. Enemies at war with the United States have no 
rights other than those which are theirs by the law of nations 
and the laws of war. The Constitution has no occasion to pro- 
vide for enemies at war with the Union anything else than a 
speedy and effectual destruction. The idea that declared ene- 
mies, waging w T ar upon the Union, have rights under the Consti- 
tution, is too preposterous to be entertained. We have only to 
inquire how the duty of destroying and subjugating the ene- 
mies of the United States, and the powers necessary to that 
end, are divided between Congress and the President. 

1. Powers and Duties of Congress. 

Looking into the Constitution, I find that Congress, as the 
legislative power of the nation, is to prepare and supply, at its 
own discretion, all the means and machinery of war, and is, 
therefore, invested with an almost unlimited power of taxation 
" to pay the debts and provide for the common defense and 
general welfare of the United States ;" that it is " to raise and 
support armies ;" that it is " to provide and maintain a navy ;" 
that it is " to makes rules for the government and regulation 
of the land and naval forces ;" that it is " to provide for call- 
ing forth the militia to execute the laws of the Union, suppress 
insurrections and repel invasions ;" and that it is " to provide 



1863.] Reply to Professor Parker. 221 

for organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the ser- 
vice of the United States." In addition to all this, Congress is 
invested with the power of declaring war and of legalizing 
other measures of hostility ; so that no war shall be lawful 
which is not recognized as such by the legislative power of the 
Union. 

2. Powers and Duties of the President. 

The Constitution creates one office never known before in 
the Union, and designates it by a title unknown till then in 
history. A Congress of the United States had been in exist- 
ence for half a generation ; and the idea of governing the 
Union by a Congress was familiar to the people. During the 
revolutionary conflict, all the powers of goverment (so far as 
there was any government of the Union) were exercised by 
Congress without any other warrant than the fact that the 
United States were at war with a powerful enemy invading 
the country from abroad, and with enemies at home who were 
often rising in arms and always ready to help the invaders. 
Experience had shown the inconveniences and the incurable 
weakness of such a government. Accordingly, the Congress un- 
der the Constitution is a very different thing from what the Con- 
tinental Congress had been. The difference is not merely that 
Congress, as now constituted, consists of two houses, the States 
being represented equally in one and proportionately in the 
other, and the members voting in both as individuals and not by 
States ; it is also, and chiefly, that the Constitutional Congress 
is invested with the legislative power of the Union and 
with hardly any other power. The power of inquiry in order 
to the ascertainment of facts, is incidental to the power of 
legislation. The power of impeachment by the House of Rep- 
resentatives, and removal from office by the Senate, and the 
power of electing a President by a peculiar method in case of 
a failure on the part of the electoral colleges, are instances of a 
power not strictly legislative yet properly entrusted to the legis- 
lative body. But with these exceptions, Congress, under the 
Constitution, has no power other than the power of making 
laws, and, as incident thereto, the power of inquiry. Instead 

vol. xxn. 15 



223 Reply to Professor Parker. [April, 

of governing the Union, as the old Congress attempted to do, 
our Congress is entrusted with a very different class of func- 
tions. By its power of making laws, of taxation, of granting 
or withholding supplies, of specific appropriation, of inquest, 
and of impeachment, as well as by its j)ower of declaring war, 
it is a check upon the government, but it does not govern. 
The power of governing the Union, as distinguished from the 
power of making laws on the one hand, and from the power of 
trying and deciding "cases in law and equity" on the other 
hand, is entrusted to an officer with a new title, the " President 
of the United States." In him is vested by the Constitution 
" the executive power " — not simply the power of executing 
the orders of Congress like a sergeant- at-arms, nor simply the 
power of carrying into effect like a marshal the sentences of 
the courts, but the power of executing the functions of what is 
properly government. The President is the prime minister of 
the national sovereignty, the responsible head of the entire ad- 
ministration. The present inquiry has nothing to do with his 
powers in time of peace. It relates only to his powers against 
the enemies of the United States in time of war. 

(1.) If Congress has performed its constitutional duty in the 
way of legislation, there is an army and a navy, and provision 
has been made for their support and efficiency ; regulations 
have been established for their government by proper officers 
and for the punishment of offenses against military discipline ; 
provision has been made for organizing, arming, and training 
by a uniform discipline, just that portion of the population 
which may be required as a militia ; and there are laws by which 
the militia, or any part of it, may be called forth in an emer- 
gency " to execute the laws of the Union, suppress insurrec- 
tions, and repel invasions." Of all that force — the army, the 
navy, and the militia called into the service of the Union — the 
President is " commander-in-chief." This is the trust which 
was committed to Washington in the war for independence. 
He held the command over the continental army raised by 
Congress, and over all bodies of militia called into the service 
of the Union. Whatever powers were wielded by him in that 
.command, against the enemies of the United States, under the 



1863.] Reply to Professor Parker. 223 

law of nations and the laws of war, are the powers which the 
Constitution requires the President to use for the destruction 
and subjugation of the enemies of the United States, whenever 
war has been legalized by Congress. But there is one very 
important difference. Washington was commander-in-chief 
by virtue of a commission from Congress delegating to him 
powers which they had assumed as belonging to them. The 
President is commander-in-chief by the fiat of the Constitu- 
tion. The Continental Congress was in fact commander over 
Washington, who received his orders as well as his commission 
from that higher authority. The President has no superior 
but in the sovereignty by whose will the Constitution was or- 
dained and established, and of whose will it is, till duly 
changed, the highest expression. Congress declares war ; the 
President makes war. 

(2.) If Congress has performed its duty of making provision 
for an organized and trained militia, and for calling forth t]iat 
militia in an emergency, the President, in case of a combina- 
tion to resist the laws of the Union, has power to " take care 
that the laws be faithfully executed," and in case of an insur- 
rection or invasion, he has power to act at once with warlike 
force against the enemies of the United States without waiting 
for Congress to be assembled. Against invaders from abroad 
or traitors in arms at home, he has power to use immediately 
all measures of destruction or subjugation not contrary to the 
law of nations and the laws of war. 

(3.) The President has power, with the advice and consent 
of the Senate, given in a two-thirds vote, to negotiate and con- 
clude a treaty with the enemies of the United States, imposing 
upon them such terms as victory shall have enabled him to dic- 
tate, or submitting to such terms as " the fortune of war" shall 
have compelled him to accept. The same treaty-making power 
which acquired, as the result of conquest, California and New 
Mexico, and which carried the western boundary of Texas 
to the Rio Grande, is competent to make peace with any hos- 
tile power recognized or unrecognized before, and to purchase 
that peace by any cession of territory, or any national humilia- 
tion, which disaster and defeat on our part shall have made in- 
evitable. A treaty made " under the authority of the United 



224 Reply to Professor Parker. [April, 

States " — though it cedes the political liberty of the states 
and the independence of the nation — is " the supreme law of 
the land," and can be set aside only by renewing the Avar. 
While the Constitution has unequivocally ordained that in our 
government, the President, acting by and with the advice and 
consent of the Senate, shall be the depositary of the treaty- 
making power, it imposes no limitation on the exercise of that 
power. Nor is such a limitation really possible. The constitu- 
tion of Mexico expressly denied to its government the power of 
ceding any portion of the national territory; but what did that 
prohibition avail against necessity % Was the treaty invalid by 
which Mexico purchased peace with the United States ? Is the 
title worthless by which we hold the vast and rich territory 
ceded to us in that treaty ? In the nature of the case every 
government that can wage war must have a power of making 
peace on such terms as a victorious enemy may dictate, and that 
power of making peace can have no limit. 

3. Cooperation of Congress and the President. 

The state of war is legalized by act of Congress. Men, 
money, ships, fortresses, all the means of war, are placed at the 
disposal of the President by acts of Congress. " Rules con- 
cerning captures on land and water "may be made by Con- 
gress. A President may be ambitious of conquest ; he may 
have a passion for wielding the powers with which a state of 
war invests him, but which pass from him when peace returns ; 
he may desire to enrich himself or his friends and dependents 
with property captured in war ; he may entertain designs 
against the ends for which the Constitution was ordained. But 
he can do nothing without the cooperation of Congress, and he 
cannot infringe the prerogatives of that body without exposing 
himself to impeachment and removal. Congress, on the other 
hand, is limited and checked by the powers vested in the Pres- 
ident. It may declare war ; but it cannot make peace. It 
may impose taxes and make appropriations for warlike pur- 
poses ; it may authorize the raising of armies by voluntary en- 
listment or by drafting ; but it cannot organize a regiment nor 
set a squadron in the field. It may define the rank, duties, 
and emoluments of all officers subordinate to the commander- 



1863.] Reply to Professor Parker. 225 

in-chief; but every officer from the lieutenant-general down- 
ward, must be nominated, and (with the advice and consent of 
the Senate) commissioned by the President. Congress depends 
on the President for an earnest and efficient prosecution of the 
war which it declares, as really as the President depends on 
Congress for men and the material means of war. 

To sum up this analysis of the powers and duties of the Fed- 
eral Government in relation to the enemies of the United 
States, I may say that, in a state of war, recognized as such by 
Congress, the Government has power to employ the entire re- 
sources of the country against the enemies of the country, and its 
power in that respect is limited only by laws higher than the 
Constitution and independent of it. Congress having legalized 
the war, and having provided the men and means, it becomes 
the constitutional right and duty of the President to use every 
legitimate method and expedient of war for the purpose of dis- 
tressing, weakening, destroying, and subduing the enemies of 
the United States. If there be any such expedient which he 
persistently refuses to employ, when he knows that in a mili- 
tary point of view it is essential to the early and prosperous 
termination of the war, he is unfaithful to his office. If he can 
weaken and embarrass the enemy by inviting any portion of 
the population under their control to renounce all subjection 
to that hostile power, and by promising them protection and 
liberty, it is not only his right but his duty to do so. If those 
enemies of the United States have under their control millions 
of slaves whose reluctant labor, though far less productive than 
the labor of freemen, is to them " the sinews of war," he cannot 
reasonably regard those slaves as anything else than a population 
oppressed by the power with which he is waging war for his 
country ; nor can he, without conspicuous unfaithfulness in his 
high office, refuse to alienate them from the service of that hos- 
tile power by giving them every reasonable assurance needfnl 
to that end. 

But you seem to think that the powers of the President, in 
the prosecution of the present war, are limited by the fact that 
the enemies with whom we have to do are traitors and rebels, 
and are liable in law to the penalties of treason. You main- 



226 Reply to Professor Parker. [April, 

tain, if I understand you, that, in this conflict, the United 
States have not the rights which, by the law of nations and the 
laws of war, belong to a belligerent power ; and that we can 
not claim those rights without conceding them at the same 
time to the other party. The question, then, arises, whether 
there is anything in the Constitution, or in that law of nations 
which it presupposes, that should restrain the President from 
using, for the conquest of this rebellion, the powers with which 
he is invested against the enemies of the United States. 

III. Powers and duties of the President in a war with 
traitors. 

You have suggested (unintentionally, I presume) a distinc- 
tion between the present conflict with a huge rebellion, and the 
process of suppressing a mere insurrection. To avoid admit- 
ting that the United States are really at war, you speak of 
" the right to suppress an insurrection by forcible means, 
which means, from the magnitude of the rebellion, have as- 
sumed the proportions of war." Let me ask your attention to 
the distinction which these words suggest, but which you 
seem to have overlooked. The dictionary says of " insur- 
rection,'' (I quote from "Webster's quarto, first edition), " It 
differs from rebellion, for the latter expresses a revolt, or an at- 
tempt to overthrow the government, to establish a different 
one, or to place the country under another jurisdiction." Un- 
der the word " rebellion," it says, " Among the Romans, rebel- 
lion was originally a revolt or open resistance to their govern- 
ment among nations that had been subdued in war ;" and its 
first definition of the word is, "An open and avowed re- 
nunciation of the authority of the government to which 
one owes allegiance ; or the taking of arms traitorously 
to resist the authority of lawful government ; revolt." The 
idea of rebellion includes the idea of insurrection, but there 
may be an insurrection which is not rebellion. This thing 
with which we have to do at present is more than a mere 
insurrection. It is in the strict sense — and I might even 
say in the old Roman sense — a rebellion on the largest scale. 
South Carolina, for instance, was conquered from the British by 
the United States in the war of independence ; and, instead of 



1863 ] K<piy t0 ^ r °f essor parkcr - 

were incorporated. So of all the States which are commonly 

oole of Lhavio^ seceded from the Union -each ot hem 

1 1 es ntcd U its own local government, has revolted. I 

attempt as a mere insurrection. This is not a tumn 

/on in Virginia; it is a rebellion ^g~wt* 
the provinces governed by he. , ^ tim „ an 

l « ev" X. u *h i be necessary to lire upon the rioters a 
force, even tnou insu ,,. ec tio.i ; disorder- 

;: : ,; s T«Ti^° *» 0^**™ ^ 

flaws or a change of government; and a greater and bloodier 

order, but the suppression of a mere insure » * • ot 
When the insurrection becomes a revolt, when the local antic 
Sad and control the movement, when -»- ^JJ 
mobs assail the imperial or national power, wher .a »W 
government is organized and is clamnng recogni , ,, hemove 
Lot is more than an insurrection-it is arcbell.cn, and rebel 



lion is war. 



I sly^n, that what " we, the people of the United State,' 

have on hand just now, is the conquest of a rebellion Je 

are not dealing with a riot, nor with a mere msurrec ion ot a 

bble We fre in the midst of a civil war, the greatest that 

^ world has ever seen. Almost the entire territory £, eleven 

States has been occupied, and the P«J^££*5K 
great military force, and what we have to do is to regain > 3 



228 Reply to Professor Parker. [April, 

conquest what we have temporarily lost, and to liberate those 
of our countrymen whose submission to the intrusive and 
usurping power is so far involuntary as to be excusable. Accord- 
ingly this conflict has been recognized as war by the supreme 
authority of the nation, as well as by the foreign powers that 
have proclaimed their neutrality. You quote, for another 
purpose, the manifesto in which Congress announced to the na- 
tion and to the world the purposes for which the struggle is to be 
maintained on our part. I mean the resolution of July, 1861, 
which I take leave to transcribe as conclusive on the question 
whether we are really at war. 

" Besolved, That the present deplorable civil war has been forced upon the coun- 
try by the disunionists of the Southern States, now in arms against the constitution 
al Government, and inarms around the capitol; that in this national emergency, 
Congress, banishing all feelings of passion or resentment, will recollect only its 
duty to the whole country ; that this war is not waged on their part in any spirit 
of oppression, or for any purpose of conquest or subjugation, or purpose of over- 
throwing or interfering with the rights or established institutions of those States, 
but to defend and maintain the supremacy of the Constitution and to preserve the 
Union, with all the dignity, equality and rights of the several States unimpaired ; 
and that as soon as these objects are accomplished the war ought to cease." 

Can anybody who reads the manifesto, be at a loss to decide 
whether the conflict with the great rebellion is really, in the 
estimation of the government, war, or only something less than 
war? Can anybod} 7 doubt whether our generals on the land, 
our admirals on the sea, and the constitutional commander-in- 
chief of our army and navy are really invested with all bellig- 
erent rights against these belligerent enemies of the United 
States? 

You are quite correct in imputing to me the opinion that in 
tlii> war "the government has all the rights of a belligerent 
which would be recognized by the law of nations in l a foreign 
war." You are equally correct in saying that "practically 
there cannot be a war in which there is only one belligerent." 
But I am compelled to pause over your opinion when you 
" think it may safely be asserted that there is no war, foreign 
or domestic, in which one of the parties is entitled to all the 
rights of a belligerent, as recognized by the law of nations, un- 
less the other party is also entitled to the same rights." While 



1863.] Reply to Professor Parker. 229 

I admit the safety of your assertion in its most obvious sense, 
I am constrained to pause over it in the suspicion that there is 
something equivocal and misleading in your use of the word 
"right." My suspicion grows when I find you proceeding to 
say, "If we claim all these rights we must concede them to the 
Confederates,*' and arguing that if we recognize the rebels as 
actually making war upon us, and if we deal with them accord- 
ing to the laws of war, we virtually acknowledge that they 
are no longer liable to punishment by the civil authorities for 
the crime of levying war against the United States. That I 
may be sure of doing you no injustice, I transcribe your lan- 
guage. 

" There may be an insurrection, and the Government may seek to assert its 
authority by force, in which neither party is entitled to the rights of a belliger- 
ent. The two parties might be, as they are in this case, belligerents so far as 
certain foreign nations are concerned, because of the recognition by such nations 
of the insurgents as a belligerent party. But as between themselves, however 
grave the proportions of the contest, their status is as to each other, that of the 
preceding lawful authority asserting itself, on the one hand, and rebels attempting 
to produce revolution on the other, and all acts of active hostility on the part of 
the rebels would be treason, and punishable accordingly. But when the Govern- 
ment itself, instead of pursuing its attempt to subdue the rebellion, assumes to it- 
self the character of a belligerent, the rebels are the other belligerent, and there 
can be no new treason, subsequently, on the part of those who before were trait- 
ors. The acts of Congress for the punishment of treason by confiscation, <fec, 
could no longer apply to subsequent acts, as between belligerents there can be no 
treason in acts of hostility. 

" If the United States may exercise all the rights of a belligerent in the terri- 
tory of a State which has rejected the Constitution and made war upon the Union, 
they may conquer the State, without doubt, and after the conquest treat it as a 
territory, and change its laws. And so, on the other hand, the State which has 
rejected the Constitution may, if it can, not only conquer the United States, 
(which is undoubtedly true, even if the case were one of mere insurrection), but 
in the attempt so to do, such State would only be exercising the lawful rights of 
the other belligerent, and if the attempt should fail, those concerned in it would 
only be subject to the common laws of warfare. The late incursion into Mary- 
land was, on your position, lawful war, and no laws of the United States were 
broken by the forces concerned in it, so as to subject them to penalties. There 
are authorities which tend to support these positions, unless they are rejected as 
' law logic' " 

Before I proceed to the consideration of your authorities, al- 
low me to say, with all respect, that if you are not amusing 



230 Reply to Professor Parker. [April, 

yourself by practicing on me a little of that verbal or logical 
legerdemain which Coleridge calls "logodwdaly" you are im- 
posing upon yourself by not observing with sufficient exact- 
ness the meaning of the words you use. It is necessary for 
me to unravel, if I can, the network of sophisms in which your 
argument would ensnare me. A few simple statements may 
be sufficient for that purpose. 

1. Nothing is more obvious than that there are belligerents 
wherever there is war, and that wherever there is one bellig- 
erent there are two. 

Sf. The recognition of a war as a matter of fact, and the 
consequent recognition of the parties to that war as belliger- 
ents, and as having in relation to each other, and in relation to 
the world, all the rights which modern civilization concedes to 
the parties in a war, is a very different thing from recognizing 
those two parties as independent sovereignties. The European 
powers have recognized the present conflict in our country as 
a war, and have therefore recognized the parties as belligerent, 
but in so doing, they have not recognized the pretended Con- 
federacy as a sovereign pow r er, nor the war as anything else 
than a great rebellion against the sovereignt} 7 of the United 
States. 

3. Wherever there is a war, all the belligerent rights of the 
belligerent parties may be acknowledged without implying any 
concession or any assumption in regard to the rightfulness of 
the war itself, or in regard to the conclusion and consequences 
of the war. In such an acknowledgment, whether by neutrals 
toward the parties, or by the parties toward each other, noth- 
ing is acknowledged but the fact that the conflict is war, to be 
conducted in conformity with the usages of the civilized world. 
The war may be on one side, or on both sides, flagitious in its 
origin — it may be an unprovoked invasion for purposes of con- 
quest or an unprovoked rebellion against an established and be- 
neficent government, but be it ever so wicked in its origin, and be 
the question at issue what it may, the recognition of it as a war, 
and of the parties as belligerents, implies nothing more than 
that, while the war lasts, the accepted laws of war — including 
the rules which define the rights of neutrals and the rules 



1863.] Reply to Professor Parker. 231 

which define the rights of the parties belligerent — are to be 
respected on all sides. The laws of war relate to nothing but 
the manner of carrying on the war. 

4. Your statement that " the late incursion into Maryland 
was, on [my] position, lawful war," and that "no laws of the 
United States were broken by the forces concerned in it, so as 
to subject them to penalties," may serve to illustrate the con- 
fusion of your argument. Judged by the laws of war, the late 
incursion of the rebels into Maryland was " lawful " — a lawful 
measure of hostility, as lawful as the operations of General 
McClellan in the Yirginian peninsula. The battle of Antietam 
was as lawfully fought by the rebels as the battle of Bull Run 
or any other battle of the war. But with the question wheth- 
er the war itself is lawful on the part of those whom you call 
the Confederates, the laws of war have no concern. If the acts 
in which the war began — the pretended ordinances of secession, 
the furtive or violent seizure of the national property, the pro- 
tracted siege of Fort Sumter, ending in the bombardment and 
capture of that fortress — were in accordance with the Constitu- 
tion of the United States, which is the supreme law of the land, 
or if they were in accordance with that higher law by which 
insurrection and revolutionary violence must be justified or 
condemned, then the whole war is lawful on their part, and the 
lawfulness of the whole includes the lawfulness of every por- 
tion, excepting only those atrocities which are contrary to the 
usages of civilized races and which are to be punished by mili- 
tary retaliation. 

5. Not only has our National Government recognized this 
conflict expressly as a war, but it has in almost every other way 
recognized the rebels as a belligerent party, and its own obli- 
gation to conduct the conflict in accordance with the laws of 
war. Has any privateer, captured on the high seas, under the 
rebel flag, been hanged for piracy ? Of the tens of thous- 
ands of rebels taken in arms against the United States, has 
any one been hanged for treason, or tried, or even arraigned 
before any civil tribunal for an offense against the laws % 
What one rule or principle is there in the system known as the 
laws of war, which our Government does not recognize as 



232 Reply to Professor Parker. [April, 

binding on the parties in this civil war, and on itself as one of 
the parties 1 

6. The question to be determined by this war is just the 
question which you say is conceded by acknowledging that it 
is a Avar, and that the parties to it are belligerent parties. 
The question to be determined is whether the pretended ordi- 
nances of secession are lawful — whether the so-called seceding 
States are in fact an independent sovereignty. All civil pro- 
cess against the traitors as we call them — all arraignment 
of them before the tribunals of civil justice — must wait till 
that question shall have been determined by the arbitrament 
of battle. If the war shall terminate in the conquest of the 
rebellion, then, as soon as the authority of the Constitution 
and laws shall have been completely established over those who 
have made war upon their country, the laws of war and the 
rights of belligerents will have nothing to do with the sequel. 
When that result shall have been attained, the lawyers may 
sing Cedant anna toga], and may rejoice in the prospect of 
trials for treason and of infinite litigation. If the war shall 
terminate otherwise, the civil tribunals will have no opportu- 
nity of dispensing justice to any of the traitors ; for, the great 
treason having prospered, it will cease to be treason before the 
law. 

Let it not shock your love of justice or your patriotism, if 
I add that ever since this war was recognized as war by the 
Government and the people, and by neutral powers, I have 
not expected that in any event the traitors will suffer the 
penalty of death, simply for their treason, under the sentence 
of any civil tribunal. The time has been when kings were 
brought to the scaffold for treason against their subjects, and 
when the leaders of an unsuccessful but well sustained revolt 
against a government were subjected to the indignity of dying 
under the hands of the executioner. But such things are out 
of fashion at present ; and though John Brown was hanged 
because his insurrection, being preposterously ill-prepared, was 
a failure from the outset, Jefferson Davis may escape the halter 
for the very reason that his stupendous crime has come so near 
to a complete success. Of the rebel leaders who may survive 
the war, some will effect their escape to countries where the 



1863.] Reply to Professor Parker. 233 

saving clause for political offenders, in treaties of extradition, 
will be their protection ; others may be captured, tried, con- 
victed, sentenced, and their sentence be commuted by execu- 
tive clemency ; but none will be hanged save those who may be 
hanged by the well known summary process of southern indig- 
nation, and those who, in imitation of conspicuous examples 
from the Scriptures, may hang themselves. Yet nothing but a 
national act of amnesty will make it safe for any one of them 
to remain in the country for a day after the war shall have 
ended in a final victory for the Union. 

I come now to the consideration of the authorities which you 
adduce in support of your position that, as against the rebel- 
lion, the United States have not the rights of a belligerent. 
Your first citation is from Gen. Halleck's chapter on the "dif- 
ferent kinds of war." That I may do you no injustice, I tran- 
scribe the entire passage as quoted by you, and that I may do 
no injustice to the author, I transcribe it with its context. 

" § 9. Civil wars are those which result from hostile operations carried on be- 
tween different parts of the same state, as the wars of the roses in England, of 
the league in France, of the Guelphs and Ghibelines in Italy, and of the factions 
in Mexico and South America. Wars of insurrection and revolution are in one 
sense civil wars, but this term is more usually applied to those contests which 
are waged between rival families or factions, for party ascendency in a state, ra- 
ther than for its dismemberment, or for a radical change in its government. Each 
party, in such cases, is usually entitled to the rights of war as against the other, 
and also, with respect to neutrals. Mere rebellions, however, are considered as 
exceptions to this rule, as every government treats those who rebel against its 
authority according to its own municipal laws, and without regard to the general 
rules of war which international jurisprudence established between sovereign 
states. As is shown elsewhere, every neutral state, in such n contest, must de- 
termine when it will consider a party in a rebellion, insurrection, revolution, or 
civil war, entitled to the rights of a belligerent in its international relations." 
Halleck, International Law and Laws of War. (San Francisco, 1861). pp.332, 
333. 

Your quotation omits the first of the foregoing sentences, • 
and the last ; and you mark as specially significant the words, 
" Mere rebellions, hoioever, are considered as exceptions to this 
rule, as every government treats those who rebel against its au- 
thority according to its own municipal laws." You expect 
me to accept this clause as proof, that in Gen. Halleck's opin- 



234 Reply to Professor Parker. [April, 

ion, the United States are not entitled to the rights of war 
against the Confederates, so called. Let ns see how your au- 
thority bears upon your position. 

The first question is, what does your author mean by " mere 
rebellion { " In this section of his chapter on different kinds 
of wars, he is defining "civil wars," and distinguishing them 
from "wars of insurrection and revolution" which he has de- 
fined in a preceding section. He has already said : 

" §5. Wars of insurrection, and of revolution, are generally those undertaken 
to gain, or to regain, the liberty or independence of the party or state which un- 
dertakes them, as was the case with the Americans in 1776, against England. * 
* * A war of revolution is generally undertaken for the dismember- 

ment of a state, by a separation of one of its parts, or for the overthrow and rad- 
ical change of the government; while an insurrectionary war is sometimes waged 
for a very different purpose. Both, however, have resjiect to the internal affairs 
of the state rather than to its external relations. They are, therefore, in one 
sense civil wars, and are governed by the same general rules which are applied 
to that class of wars." Hallcck, p. 331. 

In the light of these definitions there is no doubt into what 
class Gen. Halleck puts the war in which he is at this moment 
acting so conspicuous a part. Congress, in its manifesto, calls 
this a civil war, and so it is in the popular use of words ; but 
his definition makes it a "war of revolution," of which he says 
that "each party in such cases is usually entitled to the rights 
of war as against each other, and also with respect to neutrals." 
This war then has far outgrown the dimensions of what he 
means by a " mere rebellion." Think you that he regards him- 
self as holding his high command in a war which is conducted 
"without regard to the general rules of war which internation- 
al jurisprudence establishes between sovereign states?" The 
war with John Brown was conducted in that fashion. He and 
his followers were not allowed to surrender themselves as pris- 
oners of war. As soon as they were caught by the military 
power of the United States, they were delivered over to the 
civil power of Virginia to be tried without waiting for their 
wounds to heal, and to be hanged without mercy. That was 
w r hat Gen. Halleck means by a "mere rebellion." 

Perhaps his use of the word rebellion in this instance is not 



1863.] Reply to Professor Parker. 235 

perfectly accurate. I find however, in another passage to which 
I shall presently refer, a clear statement of the distinction 
which he makes between a mfcre rebellion, and a war of insur- 
rection or revolution, or a civil war in the more limited sense. 
Every civil war, in the largest sense, is called a rebellion by 
the party which sustains the existing government. The chron- 
ic civil war in China is a rebellion. The Avar which the En- 
glish nation as represented in parliament waged against their 
forsworn king, is commonly spoken of in English history as 
"the great rebellion." The war in which the thirteen Anglo- 
American colonies achieved their independence, was, in all 
British opinion, a mere rebellion till its success had made it a 
completed revolution. So the United States to-day are strug- 
gling to vanquish a rebellion, but the conflict is nevertheless a 
"civil war," a "war of insurrection and revolution," as defined 
by your author, and therefore a war to be conducted in con- 
formity with the recognized laws of war. 

Admitting, however, for the sake of argument, that we are 
dealing with a " mere rebellion," in Gen. Halleek's meaning ; 
and that this is therefore one of the wars in which the rule 
that " each party is entitled to the rights of war as against the 
other " may be disregarded, — the next question is whether 
your author means to say that, in a conflict with rebellion, 
neither party is entitled to the rights of war as against the 
other. Does the learned as well as gallant soldier, evidently 
writing with a sagacious anticipation of events, intend to 
limit, or to extend, the right of an established government to 
defend itself against rebellion ? "When he says that " mere re- 
bellions" are an exception to the rule which concedes belliger- 
ent rights to both parties in a war of insurrection and revolu- 
tion, does he mean that an established government has no 
more right to wage war against a mere rebellion, than the 
mere rebellion has to make war against the Government? 
Does he mean what you would have me think he means, 
namely, that, in a conflict with a mere rebellion, there are 
some measures and methods of hostility, not inconsistent with 
the rules and usages of civilized war, which the Government 
may not employ, if necessary, to effect a speedy and complete 



236 Reply to Professor Parker. [April, 

suppression of the rebellion ? The question answers itself on a 
mere inspection of the passage in its connection with the 
author's argument. What Gen/ Halleck means is obviously 
that in such a conflict the Government has all the rights which 
military power and military necessity can give, while the 
rebels have none. Poor John Brown thought that if the 
Government of the United States should assume to exercise 
belligerent rights against him, he must needs have belligerent 
rights against the Government. Was he not mistaken ? 

If you had carefully read the entire chapter on the " differ- 
ent kinds of wars," you could not have overlooked another 
section in which your author makes a still more explicit state- 
ment of his opinion on the point in question. It is the section 
in which he incidentally explains what he means by a " mere 
rebellion ;" and for that reason, as well as for its conclusive- 
ness on the topic of belligerent rights, I transcribe it. 

" § 25. A contest by force between different members of the same society or 
state, has sometimes been called a mixed war. Grotius regards such a war as 
public on the side of the established authorities, and private on the part of those 
who resist such authorities. Such a contest, on the part of individuals against 
the established Government, may be a mere insurrection or rebellion, and the acts 
of such individual insurgents, or rebels, in resisting or opposing the authority of 
the Government, may, as already stated, be punished according to the municipal 
law which they have violated ; but where the contest assumes the character of a 
public war, as defined and recognized by the law of nations, it is the general 
usage for other states to concede to both parties the rights of war so far as re- 
gards the law of blockades, of contraband, etc. It must be remembered, how- 
ever, that every insurrection or rebellion is by no means a public war, and a state 
which recognizes it as such, does so under the responsibilities which are imposed by 
the laws of international comity. It should also be remarked that, in such cases, 
belligerent rights may be superadded to those of sovereignty, that is, the contending 
parties may exercise belligerent rights with regard to each other and to neutral 
poivers, while, at the same time, the established government of the state may exercise 
its rights of sovereignty in punishing by its municipal laws, individuals of the re- 
volting party as rebels and traitors." pp. 344, 345. 

Your second citation of authority in support of the position 
that we cannot exercise the rights of a belligerent against the 
so-called Confederates, without implying that we thereby re- 
lease them from responsibility to the laws of the United 



1863.] Reply to Professor Parker. 237 

States, — is from Wheaton. The entire paragraph which you 
quote in part, is as follows : 

" A contest by force between independent sovereign states is called a public 
war. If it is declared in form, or duly commenced, it entitles botb the belliger- 
ent parties to all the rights of war against each other. The voluntary or posi- 
tive law of nations makes no distinction, in this respect, between a just and an 
unjust war. A war, in form, or duly commenced, is to be considered, as to its 
effects, as just on both sides. Whatever is permitted by the laws of war to one 
of the belligerent parties, is equally permitted to the other." Wheaton. Ele- 
ments of International Law, (Philad., 1840). pp. 342, 343. 

If you had taken notice of the fact that the subject of 
Wheaton's " Part Fourth," from which this quotation is made, 
is the " International rights of states m their hostile relations," 
and that in the dialect of international law, our country is one 
state and not many, surely you could not have thought of 
citing this passage as having any relation to the question 
whether citizens of the United States, having made war upon 
their country, and being responsible to the military power as 
recognized belligerents, are therefore exempted from all re- 
sponsibility to the civil power as traitors and criminals. I 
cannot see that in this passage, or in any other, Wheaton 
makes any allusion to that question. He does, indeed, refer, in 
the next paragraph, to the definition given by Grotius, of a 
civil war as "public on the side of the established government, 
and private on the part of the people resisting its authority ;" — 
the very definition by which the most uncompromising enemy 
of the pretended right of secession would naturally describe 
the nature of the civil war now raging in this country — a pub- 
lic war on the side of the established Government, a private 
war, like any filibustering expedition, on the part of the so- 
called Confederates. " But," he adds, " the general usage of 
nations regards such a war as entitling both the contending 
parties to all the rights of war as against each other, and 
even as respects neutral nations." What else is this than the 
identical position which I assumed, and which you have under- 
taken to controvert ? Your position that if the people of the 
United States have all the rights of a belligerent against the 
rebels and in the region occupied by the rebellion, they cannot 
at the same time have those rights of sovereignty over the 

VOL. XXII. 16 



238 Reply to Professor Parker. [April, 

whole area of the Union which are the subject matter of the 
war, — is a position which, so far as I can discover, Wheaton 
seems never to have thought of. 

Let me now illustrate, by a parallel case, my view of what 
our rights are, as a belligerent power, in the territory now 
occupied by our enemies. What if the pretended act or ordi- 
nance of ^cession in each of the rebel states had been imme- 
diately followed by a similar act or ordinance of accession to 
the French empire? What if the whole ssheme from the first, 
instead of being a conspiracy for the establishment of an inde- 
pendent and rival confederacy within the acknowledged area 
of the United States, had been a conspiracy to bring half of 
our country under the scepter of a foreign potentate ? What 
if the traitors who seized forts, arsenals, mint, and custom- 
houses, in the name and for the use of the Confederate States 
of America, had done that thing in the name and for the use 
of Napoleon III.? What if the French tricolor were now fly- 
ing wherever the flag of the rebellion is displayed upon our 
soil? What if Jefferson Davis, instead of styling himself 
" President of the Confederate States," were ruling at Rich- 
mond, as the representative of the imperial power at Paris ? 
In such a case the conflict would be, unquestionably, on both 
sides, a public war, " a contest by force between independent 
sovereign states:" and it would " entitle both the belligerent 
parties to all the rights of war against each other." My posi- 
tion is, that whatever our belligerent rights would be in such 
a case, those are our belligerent rights to day. In such a case 
the necessities of war would compel us, as the necessities of 
war in the present case have compelled us, to recognize cap- 
tured traitors, while the war lasts, as prisoners of war to be 
exchanged or paroled instead of being indicted in the civil 
courts and hanged for their treason. If, in such a case, the ex- 
pulsion of the foreign flag and the foreign power, and the con- 
sequent termination of the war, would be followed by the re- 
establishment of the constituted civil authorities ; and if every 
citizen who has " levied war against the United States," or 
has "adhered to their enemies, giving them aid or comfort," 
would thereupon find himself liable to an indictment for 



1863.] Reply to Professor Parker. 239 

treason and to punishment by the civil power unless protected 
by an act of amnesty; then the same state of things will 
ensue upon the successful termination of this war. And if, in 
the case supposed, our Government, as a belligerent power, 
would have a right to use, within the territory occupied by 
the enemy, all measures of hostility, not excepting a procla- 
mation of freedom to the slaves and the raising of an army of 
freedmen, if necessary to the speediest and most effectual ter- 
mination of the war, — then, in the present case, our Govern- 
ment, as a belligerent power, has the same right. 

What, now, is the bearing of your authorities on my posi- 
tion and on yours ? The quotations you make may serve to 
throw a little learned dust into the eyes of unwary readers, 
and they may help the logical juggle by which one thing is 
adroitly shuffled into the place of another without awakening 
any suspicion in credulous souls ; they may be available for 
the purpose of making " them that are unlearned and un- 
stable" believe that black is white, and the wrong the better 
reason ; but, on a careful examination, it appears that your 
authorities expressly testify to my position, and that concern- 
ing yours they say nothing. I do not reject your authorities 
as " law logic." Sometimes it happens that the " law logic" is 
in the misapplication and misinterpretation of quotations from 
authorities. It occurs to me as not improbable that in the 
present instance you have been wronged by some clerk or pu- 
pil employed to make the needful citations. There is nothing 
disrespectful in such a supposition. Marshall, as I have heard, 
having determined what the law ought to be in a given case, 
was wont to depend on Story for the citations which were to 
prove what the law was. So Webster is said to have devolved 
upon his junior associates, in the trial of a case, the labor o 
hunting for authorities. 

One of your letters (the fourth) assails my statement that 
" the territory held by the rebels must be recognized as hostile 
territory to be conquered and reannexed ;." and that the work 
which we have now in hand is " the earnest reality of war to 
crush a powerful and desperate enemy — to regain by conquest 
a wide territory which has been wrested from the people of the 



240 Reply to Professor Parker. [April, 

United States to whom it rightfully belongs — to establish the 
Constitution and the laws of the Union in regions over which, 
at present, they have no more sway or force than they have in 
Patagonia." I will not dispute with you about the sense in 
which the territory in question "rightfully belongs" to the 
people of the United States ; for, on that point, I do not see 
that you have really raised any doubt, and my meaning, I am 
sure, was sufficiently intelligible from the first. In whatever 
sense the territory included within the boundaries of Massa- 
chusetts or of Iowa belongs to the people of the United States, 
in that sense the territory included within the boundaries of 
Virginia or of Arkansas belongs of right to the people of the 
United States ; and that is enough for the purpose of my argu- 
ment. What you deny is, in your own words, "that any part 
of this territory has been wrested from the people of the 
United States." You say, 

" I maintain that there never has been a time since the rebellion commenced 
when the territory has not belonged to the United States in as full and ample a 
manner at it did before that period ; that there has not been any time when the 
jurisdiction of the United States, political and legal, has not been as ample as it 
was before the first act of secession was passed, nor any time since when the laws 
of the United States have not been in force throughout the territory, precisely as 
they were prior to the insurrection ; although, by reason of a treasonable and 
forcible opposition to their execution, the actual enforcement of them has been 
obstructed and prevented." 

Now in all this you strangely confound the very obvious dif- 
ference between what is true in law and what is true in tact, 
or, in other words, the difference between what ought to be, 
and what is. Do you teach your pupils that if a client comes 
for legal advice and aid in order to be put in possession of a 
farm which rightfully belongs to him, but which is occupied 
and held by another claimant, he is only to be advised that in- 
asmuch as his title is perfect, he is already in possession of the 
farm ? In such a case, do you hold that because your client is 
of right the owner of the farm, he has no ground of action, 
and cannot sue for an ejectment \ Is it worthy of your pro- 
fessional eminence to build an argument upon such a quibble 
as that the Constitution and laws of the Union are still "in 
force" throughout the area of the rebellion, though there is 



1863.] Reply to Professor Parker. 241 

no " actual enforcement " of them % They are in force, forsooth, 
but they are not put in force ! If it comes to quibbles like. 
that, please observe more exactly what I really said. Did I 
say that there is any portion of our country where the Consti- 
tution and laws are not in force? What I said was no more 
than what you yourself say when you admit that throughout 
those regions there is no actual enforcement of the laws of the 
Union, — in other words, that "the Constitution and the laws 
of the Union" are to be established "in regions over which, 
at present, they have no more sway or force than they have in 
Patagonia." 

In other passages you say, by way of inference from the fact 
that the sovereignty of the United States is limited by the re- 
served rights of the several States. 

"Of course there has not been, — there cannot have been, any wresting of the 
territory from the people of the United States, except that the rightful power 
which the United States might and ought to exercise under the Constitution, has 
been subverted, or rather suspended, for the time being, by force. And in that 
view, any reannexatio?i — which by the way is a very inappropriate term — would 
be a restoration, so far as possible, of the state of things existing previous to the 
rebellion. But that would not be a ' conquest,' and the use of the terms ' con- 
quest' and ' reannexation ' serve to show that you mean something more than 
the mere restoration of the authority of the United States. It is apparent, from 
the whole tenor of your article, that you desire through conquest and reannexa- 
tion, to accomplish something which could not be done by the mere suppression 
of t lie rebellion, — that is to say, the emancipation of the slaves. * * 

" The fact that conventions of people, in the several [seceding] states, have 
adopted acts of secession, does not wrest the territory within those states from 
the United States. The acts of secession are void, and the sovereignty, jurisdic- 
tion, and authority of the United States remain as before." * * 

" Do you not know that in thus asserting that the territory has been wrested 
from the people of the United States, and must be regained by conquest, and that 
the war must be waged for emancipation, you not only virtually admit that the 
ordinances of secession had validity, but that you make war upon the resolve of 
Congress, which I have cited above, [the manifesto of July, 1851], and commit a 
kind of petit treason against the ' great proclamation ? ' " 

I have made these extended quotations, partly for the sake 
of saying to you, peremptorily, some things which I would not 
say without putting before your eyes the evidence which 
will justify me in saying them. 

1. The inference which you make from my use of the words 



242 Reply to Professor Parker. [April, 

"conquest" and "reannexed," namely, that I "mean something 
more than the mere restoration of the authority of the United 
States," is without warrant. Not only do I repudiate that in- 
ference as one which was not in my thoughts, hut I deny your 
right to make it. 

2. When you allege that I " desire through conquest and re- 
annexation to accomplish something which could not he done 
by the mere suppression of the rebellion, that is to say, the 
emancipation of. the slaves," — and when you affirm that this 
"is apparent from the whole tenor of [my] Article," you not 
only misconstrue the whole tenor of my Article, but you do it 
with a violence, for which, I can discover no excuse. That I 
desire the emancipation of the slaves is most true. Wherever 
under God's heaven a human being is enslaved for no crime or 
fault of his own, my sympathies are with him, and I pray for 
his emancipation. If I did not desire the emancipation of the 
millions of human beings in the United States who are held in 
the lowest condition of bondage, robbed of their labor, sold 
like cattle in the market, subject to every wrong which the in- 
terest, the caprice, the fear, the suspicions, or the lust of an 
owner can inflict, shut out by law and popular hate or fear 
from all means and opportunities of acquiring knowledge, and 
denied even the poor hope of something better for their child- 
ren, I should be "a worm and no man." If I could believe 
that you, born in New England, distinguished by gifts of na- 
ture, enlightened by education, and trusted and honored by 
your fellow citizens, do not desire the emancipation of the 
slaves, I should feel myself dishonored by any correspondence 
with you. There are those in New England and elsewhere in 
the North, who do not desire the emancipation of the slaves, 
but you will not acknowledge yourself one of them. You 
know who they are, and in your dispassionate moments you 
abhor them. They are the vilest and most unclean of knavish 
politicians, and the most unthinking of their dupes — creatures 
who wear the shape of men, but in whose gross and selfish 
hearts there is no pulse of genuine sympathy with wronged 
and suffering human nature — men, if we may call them so, 
who would rather give up the Union to dissolution and betray 



1863.] Reply to Professor Parker. 243 

our grand trust of constitutional self-government, than see the 
slaves emancipated. But much as I, in common with yourself 
and all honest men, desire the emancipation of the slaves, you 
wrong me inexcusably when you charge me with desiring to 
accomplish that end by any method of violence distinct from 
and superadded to the suppression of the rebellion and the res- 
toration of the authority of the United States in the territory 
held by the rebel power. The whole tenor of my Article de- 
monstrates to any reader that in my view the proclamation can 
be justified not for one moment on the ground that the eman- 
cipation of the slaves, and the full abolition of slavery, are de- 
sirable in themselves, and devoutly longed for by all generous 
souls ; but only on the ground that the offer of freedom to the 
slaves held under the power of the pretended governments in 
the territory occupied by rebels, is a rightful measure of hos- 
tility in this war, and necessary for the suppression of the re- 
bellion, and for restoring the legitimate authority of the United 
States. 

3. When you allege that my views are at variance with the 
resolve of Congress, setting forth the causes and purposes of 
the war, and with the proclamation itself, you allege that for 
which you have no shadow of a warrant. If anything in my 
Article is intelligible, it is that the offer of freedom to the slaves 
now held in slavery by the declared and implacable enemies of 
the United States is to be regarded not as the object or purpose 
of the war, but only as a means to the object and purpose an- 
nounced by Congress. Did I not expressly consider and refute 
"the complaint that the proclamation makes no profession of 
hostility to slavery, but emancipates the slaves only because 
emancipation is a necessary measure of hostility against the 
rebels" ? What was the argument by w T hich I answered that 
complaint ? " The President has no right to emancipate any 
slave on the ground that slavery is wrong, but he has a right 
as commander-in-chief of the army and navy to proclaim the 
emancipation of slaves on the ground that their emancipation 
is necessary as a means of ending the rebellion." 

4. Your argument that the territory occupied by the rebel for- 
ces has not been wrested from the people of the United States, 



244 Reply to Professor Parker. [April, 

and must not be regarded as hostile territory to be conquered and 
reannexed, because if we so regard it we admit the validity of 
the pretended ordinances of secession, is of the same sort with 
your argument, already noticed, that because the laws of the 
United States ought to be respected and obeyed in those regions, 
it is wrong to say that they have no sway or force there. That 
a great extent of territory, wider than some of the greatest em- 
pires of the old world, has been wrested from the people of the 
United States to whom it righfully belongs, is a notorious mat- 
ter of fact which you undertake to argue out of existence by 
the consideration that it is against the law. As if, when a 
man has been shot down in the street before my eyes, and I see 
him laid stark and stiff, I must not believe the fact, because 
the assassin had no right to kill him. Could any murderer be 
convicted of his crime, if the fact of the homicide could not 
be asserted without implying an admission that the homicide 
was lawful ? The ordinances of secession were unconstitution- 
al, invalid, null and void ah initio ; but the stubborn fact hap- 
pens to be that the territory in question is held and occupied by 
the belligerent enemies of the United States, and must be re- 
covered by feats of arms, (that is, by conquest) before the fact 
and the law will be at one. 

All this remarkable argumentation of yours is employed to 
refute my position that the territory which the belligerent en- 
emies of the United States hold by military strength, is to be 
regarded as hostile territory. But, as it happens, you cite no 
authority in confirmation of your argument. What does Gen. 
Halleck say on this point \ 

" Any place, port, town, fortress, or section of country occupied by the en- 
emy, is, for most purposes, regarded in law as hostile territory so long as such 
occupation is continued. If the place so occupied were previously neutral, or a 
part of our own territory, it is no longer regarded as such, for it would be absurd 
to suppose that persons who are hostile themselves, or who are under a hostile 
authority, are to exercise the same civil rights as neutrals or citizens in time of 
peace. The relations of the government to a place or territory so occupied or 
situated, are of a military character, and consequently are not regulated by the 
civil laws which are made for the condition of peace. This change of relation, 
or rule of government, does not result from anything in the particular constitu- 
tion or laws, but from the fact of the existence of war, and the hostile occupation 
of the place." Halleck, pp. 371, 372. 



1863.] Reply to Professor Parker. 245 

Considering your professional deference to authorities, and 
that Gen. Halleck is an authority referred to by yourself, I do 
not see that anything more need be said, just now, on this part 
of the subject. The conclusion seems to be that whatever the 
President, as wielding the military power of the United States, 
might do in Florida, if that State (as we call it) had never 
ceased to be a dependency of the Spanish crown, and if we 
were at war with Spain, just that is what he may do in Florida 
now, and just that is what he may do throughout the territory 
held by the rebels. Every State or portion of a State held by 
the enemies of the United States is hostile territory, and is to 
be recovered from those enemies by the use of every hostile 
measure and expedient, not contrary to the laws of war, that 
may be found needful to the end in view. 

Do you hold that this particular expedient — a proclamation 
offering liberty to all persons held in slavery by the enemy — 
is contrary to the recognized laws of war % I will not affirm 
that you do, and yet I dare not say, on the other hand, that 
you frankly acknowledge the legitimacy of this measure in 
war. I cannot deem it superfluous to touch upon the question 
whether, admitting that, in the present conflict, the United 
States are invested with full belligerent rights against the re- 
bellion, and admitting that the territory held by the rebels is, 
for the time being, hostile territory, — a proclaimed offer of 
freedom to all persons held in slavery by the rebel power with- 
in that territory, is contrary to the law of nations and the laws 
of war. 

The first thing to be remembered, in dealing with this ques- 
tion, is, that it is not a question about the ownership of real 
estate or of chattels, but a question about the rights and duties 
of persons. As in the view of the Constitution, so in the view 
of international law, slaves are persons and not things. Before 
the law of nature, the slave and his master are equal. The 
difference between them, in respect to rights, is a factitious 
difference created by .arbitrary power, and not to be recognized 
save within the jurisdiction of the arbitrary power by which it 
was created. In the presence of war, the slave of an enemy 
has all the rights of an enemy if he takes his master's side, 



246 Peply to Professor Parker. [April, 

and you have the same rights against him that you have against 
his master. You have the same right to shoot him that you 
have to shoot his master in the same circumstances; you have 
the same right to take him prisoner that you have to take his 
master ; and when he is your prisoner he has the same right 
with his master to honorable treatment. On the same princi- 
ple, if you can induce him to take your side, he is entitled to 
all the rights of a friend ; and if there is any offer or pledge, 
not inconsistent with humanity and natural justice, by which 
you can induce him to take your side, you have a right to em- 
ploy that inducement. Had not so many of our politicians — 
and, I am sorry to add, so many of our lawyers — fallen into a 
perverse habit of assuming that slaves are always to be consid- 
ered as property and not as persons, these propositions would 
seem too much like truisms to need any proof from argument 
or from authority. 

The millions then of human beings who are now held in 
slavery under the pretended authority of the usurping govern- 
ments within the area of the rebellion— what are they ? Not 
so many millions of property in the hands of private owners, 
but so many millions of a wronged and subject population who 
are the natural enemies of our enemies, and who therefore 
ought to be our friends. The question is whether the Presi- 
dent, wielding the military power of the nation, may rightfully, 
under the laws of war, invite them to become our friends, and 
may strengthen the invitation with such offers of protection 
and of liberty as shall secure their confidence. If we were at 
war with the Austrian empire, and our armies were marching 
upon Vienna, might we rightfully call on the oppressed and 
discontented populations of that empire — Poles, Servians, 
Magyars — to become our friends, proclaiming ourselves their 
liberators, and pledging the honor of the United States for 
their protection % I will not say that common sense can an- 
swer the cpiestion. Let me refer you to a most respectable au- 
thority. If you will turn to Gen. HallecVs chapter on " Means 
and Instruments of War," you will find him saying, 

" § 29. It sometimes happens in war that intestine divisions prevail among the 
enemy's forces, and that one party may favor the objects for which we are con- 



1863.] Reply to Professor Parker. 247 

tending ; in such cases we may, without scruple, hold correspondence with the 
one faction, and avail ourselves of its assistance to overthrow the other party. 
We thus promote our own interest and gain the objects of the war, without se- 
ducing any one to crime, or even becoming the partakers of treachery. The right 
to side with a faction in war is broadly different from the pretended right of for- 
cible intervention in time of peace. A third party may side with the one or the 
other of the conflicting forces, just as he might in a war between separate and 
independent nations. If he have just cause of war against one of the parties, he 
may avail himself of the assistance of the other." p. 410. 

If we may thus take advantage of divisions "among the 
enemy's forces," and may even invite his discontented regi- 
ments to come over and fight on our side, pledging ourselves 
to make common cause with them against the common enemy ; 
how much more may we take a like advantage of divisions 
among the population under the power of that ememy, inviting 
the oppressed to receive us as their liberators, and guaranteeing 
to them whatever relief from their burdens may be necessary 
to secure their hearty cooperation and their lasting fidelity. 

You will not argue that in the case of our enslaved popula- 
tion there is a peculiarity which should restrain us from inviting 
them, by offers of freedom and protection, to become our friends 
in a war with the power that oppresses them. On this point 
the authority of Jefferson is quoted by Mr. "Whiting. I take 
the liberty of repeating the quotation. Writing about the 
military operations of Lord Cornwallis in Virginia, Jefferson 
said, 

" Having first taken what corn he wanted, he used, as was to be expected, all 
my stock of cattle, sheep and hogs for the sustenance of his army, and carried 
off all the horses capable of service. He carried off also about thirty slaves. 
Had this been to give them freedom, he would have done right." 

I have happened to light on another authority from the Vir- 
ginia of the Revolution, when the Old Dominion had great men. 
George Mason, the grandfather (I believe) of the rebel emis- 
sary now at London, said in the Convention which formed our 
Constitution, 

" The evil of having slaves was experienced during the late war. Had slaves 
been treated as they might have been by the enemy, they would have proved dan- 
gerous instruments in their hands. But their folly dealt by the slaves as it did 
by the Tories." 



248 Reply to Professor Parker. [April, 

But this citation of authorities is hardly necessary. The 
great testimony of John Quincy Adams concerning the bellig- 
erent right of proclaiming liberty to the slaves of an enemy is 
enough, and it is well known not only to those who remember 
the two several occasions on which it was uttered, and who 
have never forgotten what light it threw on the destiny of sla- 
very in this country, but also to thousands of younger men. 
It was my purpose to transcribe his testimony at large, but the 
necessary limits of this 1 etter. already too long, forbid me to 
do what I intended. Large extracts from the two speeches — 
six years apart — in which that most learned and accomplished 
statesman demonstrated, to the conviction of all thinking men 
in those days, what the powers are, in relation to slaves and sla- 
very, with which an invasion and occupation of the slaveholding 
country by enemies of the United States must needs invest the 
national government, — are given by Mr. "Whiting, pp. 75-82. 
The speeches are found entire in the Congressional Globe, 1 
Sess. XXIV Cong. App. pp. 433-435 ; and 2 Sess. XXYII 
Cong. App. pp. 420-429. You cannot forget, nor can you con- 
tradict, though you are careful not to quote, the terrible ex- 
pression which the sagacious and eloquent old man thundered 
into the astonished ears of the House of Representatives in 
183G. " From the instant that your slaveholding states become 
the theater of a tear, civil, servile, or foreign war, from that 
instant the war powers of Congress extend to interference with 
the institution of slavery in every way in which it can be in- 
terfered with, from a claim of indemnity for slaves taken or 
destroyed, to the cession of states burthened with slavery to a 
foreign powder." You have quoted — and let me assure you 
that the people have not forgotten and will never forget, his 
reiterated declaration in 1842, (never contradicted till now), 
"that when a country is invaded, and two hostile armies are 
set in martial array, the commanders of both armies have 
power to emancipate all the slaves in the invaded territory." 
I need not recite the historic instances which he adduced in 
confirmation of that statement. Let it suffice to write down 
here these emphatic words sanctioned by the most authoritative 
name in the history of our country, — " I lay this down as the 



1863.] Reply to Professor Parker. 249 

law of nations. I say that military authority takes, for the 
time, the place of all municipal institutions, and slavery among 
the rest ; and that under that state of things, so far from its being 
true that the States where slavery exists have the exclusive 
management of the subject, not only the President of the 
United States, but the commander of the army, has power to 
order the universal emancipation of slaves." 

In strict conformity with the law of nations, considerately 
and solemnly announced by John Quincy Adams, the Presi- 
dent has "ordered the universal emancipation of slaves" in 
all the territory of the United States now held and occupied 
by a hostile military power. With a careful deference to state 
rights he has done far less than this authority assures us he 
might have done. Wherever there is any shadow or pretense 
of a state government acknowledging the Constitution as the 
supreme law of the land— wherever there is even a provisional 
government not at war with the United States, he has refused 
to interfere with the institution of slavery. But where there 
was, on the first of January, no government whatever, recognized 
by the United States, and therefore no government by which 
any portion of the population can be divested, in law, of any 
human right, there he has ordered the universal emancipation 
of slaves. Had he a right to do so in the exercise of the pow- 
ers with which he is constitutionally invested in time of war? 
You have shown your discretion in argument by avoiding a 
direct conflict with the authority of John Quincy Adams on 
this point, It suited your purpose better to assail the Procla- 
mation with carping questions and criticisms about its effect 
now and after the war shall have ended. 

For example, you profess to be sorely puzzled " respecting 
what it proposes and is intended to accomplish." You in- 
quire whether the President intends merely to threaten the 
rebels, and you make a somewhat unfortunate attempt to ridi- 
cule the Proclamation in that view. After saying that your 
dog, if you had one, might bark at the moon, you proceed as 
follows : 

"The President may notify Queen Victoria that if she does not return Mason 
and Slidell within ninety days, he will proclaim in what part of her Indian do- 
minions the Sepoys shall be emancipated from the oppression to which they are 



250 Reply to Professor Parker. [April, 

subjected. I doubt whether he would be liable to impeachment if he should do 
such a foolish thing. But would her Majesty be very much alarmed by the no- 
tification except as it indicated hostility ? And if he should designate the limits ; 
at the end of the ninety days, would the Sepoys be relieved from the oppres- 
sion ?" 

The Sepoys ! Perhaps it may relieve your sympathies to be 
informed that the Sepoys are neither slaves nor otherwise op- 
pressed. They are nothing else than soldiers, of a dark com- 
plexion, voluntarily enlisted in her Majesty's service for the 
support of her imperial government over their native country, 
wearing her uniform, and regularly paid with her money. 
Whoever else may be oppressed in her Majesty's Indian em- 
pire, the Sepoys are not oppressed. Their wild and atrocious 
mutiny, a few years ago, was almost as inexcusable and in- 
sane as the secession of South Carolina. Allow me to suggest 
that a lawyer whose studies have been so exclusively profes- 
sional that he does not know the meaning of the word 
Sepoy, may be justly eminent in his profession — may be what 
Bartholine Saddletree would call " a elarissimus Ictus" but 
he has little occasion to crow over the ignorance of clergymen 
in matters not pertaining directly to their profession. 

Let me show you what your supposed case should have been, 
if you desired to make it in any degree analogous to the case 
in hand. If we were engaged in a desperate war with Great 
Britain, if India were considered to be the most vulnerable por- 
tion of the British empire, if we had an immense armament in 
the Pacific ready to be precipitated upon the enemy at his 
weakest point, and if it, were known that a blow at India would 
enlist the sympathies of all Europe on our side, then the Pres- 
ident might proclaim that unless peace should be restored in 
ninety days he would carry the war into India, and recognize 
the freedom and independence of the subjugated races there. 
Can you understand what would be the intent and bearing 
of such a proclamation ? 

You affect to inquire whether the Proclamation is to be re- 
garded " as a measure of punishment ; — as a confiscation of 
slaves for the crime of rebellion or treason?" Certainly you 
are at liberty to call it " a measure of punishment," if you 
please, though it is not punishment in the sense of the courts 



1863.] Reply to Professor Parker. 251 

of law. It is punishment of the rebellion in the same sense 
in which the blockade is punishment — in the same sense in 
which the turning of the Mississippi from its channel, and the 
deluging of a territory larger and richer than many an old- 
world principality, are a punishment. It is a measure of hos- 
tility against the implacable enemies of the United States, — 
who have established themselves upon our soil by military vio- 
lence, and who are at this moment occupying a large portion 
of our territory, — a measure designed to weaken them, to dis- 
tress them, to subdue them, and to expel them forever from our 
country. 

The immediate effect and bearing of the proclamation 
as a measure of hostility seem to me quite intelligible. 
(1.) Wherever our military power shall be established within 
the area of the rebellion as it was defined on the first of Janu- 
ary last, the freedom of every inhabitant, without distinction, 
is to be immediately recognized by all military and naval offi- 
cers and by all persons under their command or control. 
(2.) "Wherever the rebel power which now holds the slaves in 
subjection shall be expelled by victory, the provisional milita- 
ry government which must needs come in its place will recog- 
nize no man as the owner of another, and will admit into its 
administration of justice no violation of the principle that the 
laborer is worthy of his hire. (3.) In all capitulations for the sur- 
render of towns and districts heretofore held by the enemy, what- 
ever the stipulations may be in behalf of private property, there 
will be no stipulation by which any man will be recognized as 
the property of another, or which shall compromise the liberty 
of those wdiom the proclamation pronounces free. (4.) Through 
all the waning fortunes of the rebellion, the holders of slaves 
and the non-slaveholding whites, throughout the rebel states, 
will understand that the military power of the Union has re- 
cognized their slaves as men, wdiose wrongs are to be consider- 
ed and whose inalienable right to liberty is to be secured in 
the final adjustment of the conflict. (5.) What is of more con. 
sequence than all the rest is that the slaves and the free black 
peoj>le who heretofore have had no interest in the restoration 
of the Union, have now the greatest possible interest in our 
success. For example, at the commencement of the war, there 



252 Reply to Professor Parker. [April, 

was, in the State of South Carolina, an aggregate population of 
703,70S, of whom only 291,388 were white in law. The re- 
maining 412,3i!0 (including 9,914 free blacks or people of color) 
had indeed a contingent and conjectural interest in the con- 
flict, for their instincts taught them that God might have sent 
in that awful whirlwind the angel of their deliverance. They 
had, therefore, an interest in the conflict, but they had no in- 
terest in the restoration of the Union. Nay, their interest was 
really adverse to such victories on our part as would have 
crushed the rebellion in its earlier stages. They could under- 
stand (what you recognize as an inevitable incident of the war) 
that, during the continuance of hostilities, as many of them as 
might come within our lines, though liable to indignity and 
cruelty from a certain class of soldiers and officers, would prob- 
ably not be returned to our enemies, and would perhaps in 
some way acquire their freedom. But to them our early and 
complete success would be (as you think that constitutionally 
and legally it ought still to be) the closing of that door of hope. 
Here then is the force and bearing of the proclamation as a 
measure of hostility against the rebellion. It gives to the more 
than four hundred thousand slaves and free people of color, in 
South Carolina, a far greater interest in the suppression of the 
rebellion and the restoration of the national authority, than the 
less than three hundred thousand white people can possibly 
have in any other result. Its bearing is the same in other 
States. 

It seems to me that this very simple view of w 7 hat the proc- 
lamation is in its present effect and bearing, as a measure for 
the conquest of the rebellion and the restoration of the Union, 
refutes the entire argument in your sixth letter, which has 
had the honor of being circulated as a tract under the patron- 
age, as I suppose, of the Delmonico Society for the diffusion 
of sound political knowledge. Surely if the proclamation has 
an obvious and most important relation to the progress and the 
early termination of the w r ar — if it has an effect not only 
within our military lines but far in advance of our armies — if 
it facilitates all our hostile operations by giving us some 
millions of most interested friends in the territory held by our 
enemies — the entire argument which you build on the assump- 



1863.] Reply to Professor Parker. 253 

tion that the proclamation is to take effect only after the close 
of the war, must fall to the ground. 

As to what will be after the war is ended, and particularly 
how the legal status of those who have been slaves is to be ad- 
justed without infringing the reserved rights of the States 
under the Constitution, allow me to say that I think you need 
not be troubled. The end is not yet ; and this is eminently one 
of the cases in which it is wise to " take no thought for the 
morrow," and in which " the morrow will take thought for 
the things of itself." Many things will have come to pass be- 
fore the rebellion will have been finally disposed of, and the 
territory it has ravaged be restored to the Union and sub- 
jected to the normal and peaceful administration of govern- 
ment. You see what has happened in "West Virginia, where 
the people, finding themselves emancipated by war from 
the domination of the slaveholding interest, have freely de- 
creed, in their recovered sovereignty, the abolition of slavery. 
Just that thing you may be sure will happen elsewhere in the 
process of reestablishing the Union. For example, when the 
rebellion shall have been extinguished in Virginia, and a loyal 
convention of delegates from the people shall sit in the capitol 
at Richmond to reorganize the State after so long an interreg- 
num, think you that Letcher, and Wise, and Mason, and others 
like them, will have seats in that convention ? Not at all ! 
Before such a convention can be elected, the loyal people in 
Virginia will have accepted the emancipation of the slaves and 
the final abolition of slavery as inevitable facts ; and the 
whole race of aristocratic conspirators against liberty, who 
have brought such shame and suffering upon that once illustri- 
ous State, will have become forever infamous there. Please to 
recollect that there is already a Governor of Virginia who is 
not Letcher, and who is recognized in that character not only 
by the President, but also by the Senate and the House of 
Representatives. "When the Government de jure, now repre- 
sented by Governor Pierpont at Alexandria, or some more 
obscure locality, shall have become the government de facto at 
Richmond, there will be no quarreling with the stubborn fact 
that the emancipation of the slaves has been an incidental yet 

VOL. XXII. 17 



254 Reply to Professor Parker. [April, 

inevitable and irreversible result of the war. In that regen- 
erated Virginia, baptized and purified with fire, the reserved 
right of the State to determine the legal condition and rela- 
tions of its inhabitants will not be employed in the insane 
attempt to obtain a perpetual entailment of poverty and bar- 
barism by reenslaving an emancipated peasantry. 

Think what must be the process of restoring the Constitu- 
tion, and reestablishing the constitutionally guaranteed form of 
government, and the constitutionally limited sovereignty of the 
State, in South Carolina. First, there must be a provisional 
military government, under which no question will be raised 
whether the military emancipation of the slaves, as proclaimed 
on the first of January, 1863, was valid. Regiments of freed- 
men, under a rigid military discipline, will garrison the forts, 
will guard the custom-houses, will protect the cities against in- 
surrection, and will ensure public order. A new population, 
with new capital, new ideas and habits, will begin to take the 
place of rebels, banished or emigrating in disgust. Slowly 
and quietly, thought, speech, industry, enterprise, domestic 
arrangements, and all the relations of society, will begin to be 
adjusted to the new basis. Instead of the relation of owner 
and slave there will spring up the relations of landlord and 
peasant, of employer and employed, of master and free servant. 
If some of the freedmen become disorderly and fall into habits 
of idleness and vagrancy, the provisional government will deal 
with them and make them know that their subsistence is to be 
earned by their labor. While these processes of adjustment 
are going on, every month and every week will diminish the 
possibility of even an attempt to reestablish slavery. And 
whenever the time shall have come for a convention to recon- 
stitute the state government, the liberty of those who were once 
slaves will have become an immovable fact to which the policy 
of the restored and reestablished State will be freely adjusted, 
even though the adjustment be attended with regrets for the 
system that has perished. The process of reenslaving, after 
the return of peace, a population that has been emancipated 
by war, has not often been attempted ; nor am I aware that 
its success in any instance has been such as to encourage a new 
experiment in that direction. The prospect of that "good 
time coming" which you seem to anticipate so cheerfully, when 



1863.] Reply to Professor Parker. 255 

the rebel states, restored to their places in the Union, shall en- 
ter on the enterprise of reducing to slavery again the millions 
emancipated by the military power of the nation, does not 
impress me as particularly brilliant. 

I do not forget the possibility that another President may repu- 
diate the pledges which President Lincoln has given. I do not 
forget the possibility that a future Congress may depart from 
the policy sanctioned by the one which has just expired. Nor 
do I forget the possibility that the question whether the people 
to whom the proclamation offers freedom ai'e legally free, may be 
brought to an issue in the Courts of law. Doubtless an unpre- 
cedented crop of law suits will be among the consequences of 
this war, and you may reasonably expect that some litigated 
case may turn upon that question. If such a case were to be 
decided by the same judges who falsified law and history for 
the sake of denying justice to Dred Scott, it would probably 
be decided to your satisfaction. But the Supreme Court of 
the United States is not now, and will never again be, what it 
was when Judge Curtis threw off his judicial robe and resigned 
his seat in disgust. Certain preliminaries too must be trans- 
acted, before the question of dooming to slavery the millions to 
whom the proclamation offers liberty can be judicially decided. 
The war must be ended. The republican form of government 
guaranteed by the Constitution must be established in the 
States whose government under the Constitution has been 
abolished for the time by the enemy. These preliminaries 
will not be completed without taking time. After that lapse 
of time, the Supreme Court will be, yet more than now, un- 
like what it was when, to mark the inauguration of President 
Buchanan as an epoch in our history, the Dred Scott decision, 
having been prepared for the occasion, startled the country 
like an earthquake. 

I cannot think that you are really expecting to see the legal 
invalidity of the proclamation established by any such method. 
Does not your argument assume rather that the war is to be 
ended by negotiation and compromise, and that the reenslav- 
ing of the emancipated millions is to be part of the bargain? 
I have never intimated — nor do I now imply — that you are one 
of those traitors at heart who are laboring to save the rebellion 



256 Reply to Professor ParTcer. [April, 

from its fate by compelling the Government to negotiate for a 
peace. But, as I have already said more than once, there are 
such men. Do you ask me who they are % They are the men 
who in their conventions resolve that the Constitution has been 
violated by the admission of West Virginia as a State, because, 
forsooth, though the loyal legislature of Virginia which the 
Government has recognized in every way, and which has sent 
two senators into Congress, gave consent to the division of their 
State, John Letcher and the parliament of traitors over whom 
he presides at Richmond have not consented. I do not charge 
that you are one of them, for you seem to hold that the loyal 
citizens within the boundaries of a rebel State are the State, 
and that though they be no more than two or three in number, 
their rights and powers, as a State under the Constitution, are 
never in abeyance. Yet your argument seems to expect that 
the war is to terminate in some other way than by the conquest 
and complete subjugation of the rebels. If we are to have a 
Congress which will stop the supplies, which will compel the 
President to negotiate for a suspension of hostilities till the 
rebels can take breath, which will permit the rebel power to be 
represented by delegates in a convention called for the purpose 
of revising the Constitution and reconstructing the Union, I 
can suppose that the proclamation will pass for nothing, and 
that your questions about its effect on the legal status of the 
slaves now actually held by the so-called Confederates will be 
considered unanswerable. 

You take it as a personal wrong to yourself when I say, of 
the men who are thus endeavoring to obtain peace by negotia- 
tion and compromise between the United States and " the 
Confederates," that they " expect nothing else, and intend 
nothing else, than some concession to the rebels which shall 
either divide the Union or subvert the Constitution." I have 
disavowed, more than once, any intention of putting that 
imputation upon you. But let me, in closing this letter, com- 
mend to your serious attention the dire alternative to which 
you and I, and all our fellow-citizens of the United States, are 
brought. E'*her this great and persistent rebellion must be 
crushed, con ■ ai ".jiy and finally, by war ; or w T e must make a 
compromise with it, and take such terms of peace as we can 



1863.] Reply to Professor Parker. 257 

get. The question comes to every citizen — and let me say, re- ' 
spectfully, it comes to you, Which side of this alternative do 
you take ? To end the war by negotiation and compromise is 
to despair of the republic. It is to concede the principle that 
a party, or a combination of interests, which cannot achieve its 
wishes by votes, may resort to arms. It is to abandon the 
primary idea of our national self-government. Peace by such 
a method is the ruin of the republic founded by our fathers. 
Are you for such a peace % If you are the man I suppose you 
to be, } t ou abhor the thought. 

The other side, then, of the alternative, is your position. 
You are for crushing this rebellion, completely and forever, by 
prosecuting to the end the war which it has inaugurated. 
But let me say that it becomes you, as a man of practical 
sense, to understand that this war cannot be prosecuted to a 
successful result by any half-measures of hostility. Half- 
measures in war are cruelty as well as imbecility. They are 
treacherous to the cause in which they are employed. I have 
lately heard a story of a good old woman in the revolutionary 
war, whose son was drafted for a soldier, and who charged 
him, as she buckled on his knapsack, " Now, Johnny, do you 
take care that you don't exasperate the enemy." Let us be 
thankful that our old women in these days, with the excep- 
tion, perhaps, of some whose garments are made by tailors 
and not by mantua-makers, have better sense than that. 
"Within the last two years, we have learned — all of us — that if 
we would bring this war to an early and prosperous close, if 
we would save and perpetuate our republic, with all those 
interests of universal humanity and of the kingdom of God 
amono; men which are involved in the well-bein<r of our 
nation, it must be war in earnest, and must use every instru- 
ment and method of hostility not forbidden by the rules of 
civilized warfare. It is too late in the day for Johnny, who- 
ever he may be, to come from his mother with the sage counsel 
that this or that expedient of lawful war must not be employed 
for fear of exasperating the enemy. 

You have been kind enough to bestow upon v*s much of the 
wisdom and learning acquired in your profess ! Though I 
can make, from my poverty, no adequate return of professional 



258 Reply to Professor' Parker. [April, 

lore, I may say that my studies, which are in kind the studies 
proper to every Christian, have accustomed me to think of 
this national agony as related to interests that transcend the 
sphere of jurisprudence. That the hideous injustice which has 
been heretofore the basis of society in so many of our States, 
should stand forever, was impossible ; because there is a God 
whose providence governs the world in the interest of right- 
eousness. Had a peaceful reformation been permitted — had 
the free thought and speech, the free press, and the free self- 
government of the nation been permitted to grapple with the 
local wrong — that wrong might have yielded to the gradual and 
peaceful force of moral influences. But no such reformation 
was permitted. Year by year the stupendous iniquity, defy- 
ing the moral sense of the world, and reeking to heaven, has 
grown more insolent, more rapacious, more atheistic. Mean- 
while the mysterious forces which God lias incorporated with 
the being of human society, and of which in their action and 
reaction all human history is the record, have been slowly 
working ; and now we see the beginning of the end. The great 
day of God's wrath against that wickedness has come. In his 
righteous providence the system of organized wrong which 
those States have permitted to rule over them, has wrought 
out a natural vengeance on them and on itself. It has involv- 
ed them in the miseries of a war which never can end till the 
iniquity itself-has perished. In that war we are simply defend- 
ing ourselves, our laws, our national unity, our Constitution, 
our glorious heritage ; but we cannot defend ourselves, we can 
not leave this goodly heritage to our children, without doing 
God's work of vengeance. The vengeance is not ours but his. 
We have assumed no right of intervention in the long-pending 
issue between the oppressors and the oppressed, but God has 
shut us up to the necessity of doing his work. If we quit 
ourselves like men in the great agony of this crisis — if we do, 
in all fidelity and fearlessness, our own work of self-defense — if 
we do not basely betray our country to its enemies — the slaves 
cannot but be emancipated. 

Respectfullv, your obedient servant, 

LEONABD BACON. 

New Haven, Conn., March, 1S63. 



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